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Executive Privilege (7)
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23914132
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Executive Privilege (7)
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Philip W. Buchen Files
Philip Buchen's General Subject Files
subjects
Nixon, Richard M. (Richard Milhous), 1913-1994
Intelligence
Executive privilege (Government information)
Security classification (Government documents)
Legislation
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23914132
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1974-08-01
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The original documents are located in Box 13, folder "Executive Privilege (7)" of the Philip
Buchen Files at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald R. Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
SENATE SELECT COMMITTEE ON PRES. CAM. ACT. V. NIXON
725
Cite as 2d 725 (1974)
ry for companies confined to the pro-
ducing function.
SENATE SELECT COMMITTEE ON
We find a rate of return of approxi-
PRESIDENTIAL CAMPAIGN ACTIV.
mately 15 percent proper to be used in
ITIES, suing in its own name and in
these proceedings. (R. 2670.)
the name of the United States, et al.,
Continental argues that the Commis-
Appellants,
sion improperly determined initial rate
V.
levels solely on the basis of cost com-
Richard M. NIXON, Individually and 38
ments, and that in any event the rates
President of the United States.
established were inadequate to promote
No. 74-1258.
necessary and future gas supplies.-
United States Court of Appeals
[5, 6] We need not labor the point
District of Columbia Circuit.
that the Commission has wide discretion
Argued April 2, 1974.
in deciding what factors to consider in
Decided May 23, 1974.
certifying initial rates as required by
public convenience and necessity, FPC V.
Sunray DX Oil Co., 391 U.S. 9, 88 S.Ct.
Suit by Senate committee for en-
1526, 20 L.Ed.2d 388 (1968) United
forcement of subpoena duces tecum
Gas V. Callery Properties, 382 U.S. 223,
served on President for production of
86 S.Ct. 360, 15 L.Ed.2d 284 (1965), re-
tape recordings of conversations between
hearing denied, 382 U.S. 1001, 86 S.Ct.
President and presidential aide. The
526, 15 LEd.2d 491 (1966) Atlantic
United States District Court, Gerhard
Refining Co. V. Public Service Commis-
A. Gesell, J., 370 F.Supp. 521, dismissed
sion of N.Y. (CATCO), 360 U.S. 378, 79
the action, and the committee appealed.
S.Ct. 1246, 3 L.Ed.2d 1312 (1959), and
The Court of Appeals, Bazelon, Chief
cost is one factor which may be consid-
Judge, held that Court would not enforce
ered, Permian Basin Area Rate Cases,
subpoena in light of fact that subpoe-
390 U.S. 747, 815, 88 S.Ct. 1344, 20 L.
naed material was not critical to com-
Ed.2d 312 (1968). As we have indicated
mittee's performance of its legislative
moreover the record discloses that the
functions.
Commission did consider factors other
Affirmed.
than cost comments; contrary to the
contention of Continental evidence con-
MacKinnon, Circuit Judge, filed a
cerning intrastate sales and supply and
concurring opinion; Wilkey, Circuit
demand was considered. We must also
Judge, filed a concurring opinion.
decline Continental's invitation to hold
that the rates established were too low.
There is no showing that the rates are
L United States -26
outside the 'zone of reasonableness'
Presumption that presidential con-
within which the courts may not set
versations are privileged, premised on
aside rates adopted by the Commission."
public interest and confidentiality of
FPC V. Sunray DX Oil Co., 391 U.S. 9,
presidential decision-making process, can
29, 88 S.Ct. 1526, 1537, 20 L.Ed.2d 388
be overcome only by an appropriate
(1968)
showing of public need by party seeking
We think the Commission's orders
access to conversations.
sufficiently articulated and explained
2. United States -26
the reasoning and factual basis of the
Executive cannot, any more than
conclusions reached; and considering
other branches of government, invoke a
the record as a whole we find that the
general confidentiality privilege to
orders were supported by substantial ev-
idence.
shield its officials and employees from
investigations by proper governmental
The orders of the Commission are
institutions into possible criminal
Affirmed.
wrongdoing.
726
498 FEDERAL REPORTER, 2d SERIES
SENATE SEI
3. United States -23(4)
a brief on behalf of the United States as
Court would not enforce subpoena
amicus curiae.
subpoena that is the
duces tecum served by Senate committee
appeal.3
Before BAZELON, Chief Judge, and
on President seeking production of five
This subpoena direct
WRIGHT, McGOWAN, LEVENTHAL,
tape recordings of conversations between
to make available to
ROBINSON, MacKINNON and WILK-
President and presidential aide, where
taped recordings of f
EY, Circuit Judges.
subpoenaed evidence was not critical to
that had occurred on SI
committee's performance of its legisla-
tween President Nixon
tive function to investigate improper ac-
BAZELON, Chief Judge:
Dean, III, discussing
tivities occurring in connection with
In this suit, the United States Senate
acts occurring in con
presidential campaign and where com-
Select Committee on Presidential
Presidential election
mittee's investigative objectives over-
paign Activities seeks a declaration that
subpoena was duly ser
lapped with objectives of House commit-
President Richard M. Nixon has a legal
dent, together with a
tee which had in its possession copies of
duty to comply with its subpoena duces
duces tecum, requiring
each of tapes subpoenaed by Senate com-
tecum, directing him to produce "origi-
records that concerned
mittee. 28 U.S.C.A. 1364 U.S.C.A.
nal electronic tapes" of five conversa-
rectly, the activities,
Const. art. 1, $ 2, cl.
tions between the President and his
sponsibilities or invc
former Counsel, John W. Dean, III. By
ty-five named person
memorandum and order of February 8,
criminal acts related 1
1974, the District Court for the District
election of 1972."5 B.
Samuel Dash Chief Counsel Senate
of Columbia denied the Committee's mo-
returnable on July 26
Select Committee on Presidential Cam-
tion for summary judgment and dis-
July 25, 1973, address
paign Activities, Washington, D. C.,
missed the suit without prejudice.¹ The
vin as chairman of t
with whom Rufus Edmisten, Deputy
Committee appeals. For the reasons
tee, the President d
Counsel, James T. Hamilton, Asst. Chief
stated herein, we affirm.
with either subpoena,
Counsel, Richard B. Stewart, Sp. Coun-
fication the doctrine
sel, Ronald D. Rotunda, Asst. Counsel,
I.
lege. The President
Senate Select Committee on Presidential
The Select Committee was created on
though he had direct
Campaign Activities, Washington, D. C.,
Sherman L. Cohn, Eugene Gressman and
February 7, 1973, by a resolution of the
privilege not be invol
testimony by present
Jerome A. Barron, Washington, D. C.,
Senate empowering the Committee to in-
bers of [his] staff e
were on the brief for appellants.
vestigate "illegal, improper or unethical
criminal conduct," €
activities" occurring in connection with
John J. Chester, Washington, D. C.,
was being asserted w
the presidential campaign and election
with whom James St. Clair, Boston,
uments and recordin
of 1972, and "to determine
the
Mass Michael A. Sterlacci, Jerome J.
made public consiste
necessity or desirability of new congres-
Murphy, Loren A. Smith and Charles
dentiality essential to
sional legislation to safeguard the elec-
Alan Wright, Austin, Tex., was on the
the Office of the Pres
toral process by which the President of
Brief, for appellee. George P. Williams,
the United States is chosen. In testi-
The Committee, in
Washington, D. C., also entered an ap-
mony before the Committee on July 16,
in the name of the
pearance for appellee.
1973, Alexander Butterfield, a former
brought this action
Philíp A. Lacovara, Counsel to the Sp.
Deputy Assistant to the President, stat-
Prosecutor, Washington, D. C., with
ed that certain presidential conversa-
3. Section 3(a) (5) of
whom Leon Jaworski, Sp. Prosecutor and
supra, empowers the o
tions, presumably including those about
to require
Peter M. Kreindler, Executive Asst. to
which Mr. Dean and others had pre-
any department, ager
the Sp. Prosecutor, Washington, D. C.,
viously testified, had been recorded on
of the executive bran
were on the brief for the Sp. Prosecutor
electronic tapes. The Committee there-
Government : .
as amicus curiae.
consideration or for
upon attempted informally to obtain cer-
investigation and st
Irving Jaffe, Acting Asst. Atty. Gen.,
tain tapes and other materials from the
or materials relatin
Robert E. Kopp, Washington, D. C., and
President. When these efforts proved
ters or questions it
Thomas G. Wilson, Alexandria, Va., filed
unsuccessful, the Committee issued the
tigate and study x
there may have in
I: Senate Select Committee on Presidential
2. Senate Resolution 60, 93rd Cong., 1st Sess.
ORD
their control *
Caripaign Activities V. Nixon, 370. F.Supp
5 1(a) (1973).
521 (D.D.C.1974).
LIBRARY
4. Joint Appendix at 2
SENATE SELECT COMMITTEE ON PRES. CAM. ACT. V. NIXON
727
Cite as 498 F.2d 725 (1974)
subpoena that is the subject of this poenas. It alleged in its complaint that
appeal.3
"the subpoenaed electronic tapes and
This subpoena directed the President
other materials are vitally and immedi=
to make available to the Committee
ately needed if the Select Committee's
taped recordings of five conversations
mandate and responsibilities
that had occurred on specified dates "be-
are to be fulfilled.' On August 29, the
tween President Nixon and John Wesley
Committee filed a motion for summary
Dean, III, discussing alleged criminal
judgment, seeking a declaration that the
acts occurring in connection with the
subpoenas were lawful and that the
Presidential election of 1972."4 The
President's refusal to honor them, on
subpoena was duly served on the Presi-
the ground of executive privilege or oth-
dent, together with a second subpoena
erwise, was illegal. On October 17, the
duces tecum, requiring production of all
District Court dismissed the Commit-
records that concerned, directly or indi-
tee's action for want of statutory sub-
rectly, the "activities, participation, re-
ject matter jurisdiction.⁸ The Commit-
sponsibilities or involvement" of twen-
tee appealed to this Court.
ty-five named persons in any alleged
While the appeal was pending, the
criminal acts related to the Presidential
Senate on November 2 passed a resolu-
election of 1972." Both subpoenas were
tion stating that the Select Committee is
returnable on July 26. By letter dated
authorized to subpoena and sue the
July 25, 1973, addressed to Senator Er-
President and that the Committee, in
vin as chairman of the Select Commit-
subpoenaing and suing the President,
tee, the President declined to comply
was acting with valid legislative pur-
with either subpoena, asserting in justi-
poses and seeking information vital to
fication the doctrine of executive privi-
the fulfillment of its legitimate legisla-
lege. The President stated that, al-
tive functions. The Select Committee
though he had directed "that executive
asked this Court to hold its appeal in
privilege not be invoked with regard to
abeyance pending action on a bill, then
testimony by present and former mem-
before Congress, which conferred juris-
bers of [his] staff concerning possible
diction on the District Court for the
eriminal conduct,' executive privilege
District of Columbia in any civil action
was being asserted with respect to "doc-
that the Committee theretofore or there-
uments and recordings that cannot be
after brought "to enforce or secure a
made public consistent with the confi-
declaration concerning the validity of
dentiality essential to the functioning of
any subpoena." This bill was enacted
the Office of the President."
by Congress and the President having
The Committee, in its own name and
failed to exercise his veto, took effect on
in the name of the United States, then
December 19, 1973.10 On December 28,
brought this action to enforce the sub-
in light of this new jurisdictional stat-
3. Section 3(a) (5) of Senate Resolution 60, 5. Joint Appendix at 29-33.
supra, empowers the Committee:
6. Joint Appendix at 35.
...
to require by subpoens
...
any department, agency, officer, or employee
7. Complaint of the Senate Select Committee
of the executive branch of the United States
on Presidential Campaign Activities, et al.,
Government to produce for its
at 8; Joint Appendix at 8.
consideration or for use as evidence in its
investigation and study any ... tapes,
8. Senate Select Comm. on Presidential Cam-
or materials relating to any of the mat-
paign Activities et al. V. Nixon, 366 F.Supp.
ters or questions it is authorized to inves-
51 (D.D.C.1973).
tigate and study which they or any of
9. Senate Resolution 194, 93rd Cong., 1st
them may have in their custody or under
Sess. (1973).
their control
10. Pub.L.No. 93-190 (Dec. 18. 19F3) be
4. Joint Appendix at 26-27.
codified as 28 U.S.C. § 1364.
LIBRARY
728
498 FEDERAL REPORTER, 2d SERIES
SENATE SEL
ute, we remanded the case to the Dis-
sons for which the District Court had
willingness to submit th
trict Court for further consideration. 11
called, the President reasserted execu-
Court's in camera ex pa
Following the remand, on January 25,
tive privilege generally as to all of the
in any other fashion to
1974, the District Court issued an order
subpoenaed material, citing as the bases
claim of executive privile
quashing the Committee's subpoena con-
for his claim the need for confidentiality
dicial recognition of th
cerning twenty-five individuals. The
of conversations that take place in the
confidentiality grounds.
Court found the subpoena too vague
performance of his constitutional duties,
then, in the discharge c
and conclusory to permit a meaningful
and the possibly prejudicial effects on
court of equity, undertoc
response" and, referring to our interven-
Watergate criminal prosecutions should
to weigh the public ir
ing opinion in Nixon V. Sirica, 12 held the
the contents of the subpoenaed conversa-
guarding pending crimii
subpoena "wholly inappropriate given
tions become public. The latter con-
from possibly prejudici:
the stringent requirements applicable
cern was raised with reference to the
licity against the Comn
where a claim of executive privilege has
President's constitutional duty to see
need for the subpoenaed
been raised." No appeal was taken
that the laws are faithfully executed.
particular circumstances
from this order and the matter is not
cluding the fact that th
On February 8, the District Court en-
before us.
ready been made availal
tered the order at issue here. In the
1972, grand jury of th
At the same time, the District Court
memorandum accompanying the order,
Court found it necessary
issued two orders concerning the subpoe-
the Court dealt first with the Presi-
ity to the public interest
na of the five identified tapes. In the
dent's assertion that the matter before
ty of the criminal proce
first, the Court requested the Watergate
it constituted a non-justiciable political
the Committee's need.
Special Prosecutor to submit a "state-
question. Finding the reasoning of this
missed the Committee"
ment concerning the effect, if any, that
Court in Nixon V. Sirica, which con-
prejudice.
compliance: with [the subpoena] would,
cerned a grand jury subpoena, "equally
in his opinion, be likely to have upon
applicable to the subpoena of a congres-
II.
pending criminal cases or imminent in-
sional committee," the District Court
The Select Committee
dictments. under his supervision." In
held that, under that case and the rele-
once having determined.
the second order, finding the President's
vant Supreme Court precedents, the is-
dent's general confident
claim of executive privilege "too general
sues presented to it were justiciable. 17
failed, the District Cou
and not sufficiently contemporaneous to
The Court then turned, in the terms of
enable the Court to determine the effect
Nixon V. Sirica, to a weighing of "the
thority to engage in a t
terests, where the resu.
of that claim under the doctrine of Nix-
public interests protected by the Presi-
judgment on the magniti
on V. Sirica," the Court requested the
dent's claim of privilege against the
derlying the Committee's
President to submit "a particularized
public interests that would be served by
disclosure to the Committee in this par-
thorize and issue a subp
statement addressed to specific portions
tively, the Committee a
of the subpoenaed tape recordings indi-
ticular instance." The Court found,
such balancing must fave
cating whether he still wishes to invoke
first, that the Select Committee had
gently affected with the
executive privilege as to these tapes and,
failed to demonstrate either "a pressing
the Committee's asserted
with regard to those portions as to
need for the subpoenaed tapes or that
public interest in the 1
which the privilege is still asserted, if
further public hearings before the Com-
criminal process We fi
any, the factual ground or grounds for
mittee concerning the content of those
sary to reach either conte
his determination that disclosure to the
tapes will at this time serve the public
the Committee's position
Select Committee would not be in the
interest." At the same time, however,
it correctly, that of the
public interest. The President re-
the Court rejected the President's claim
accurately reflects the do
sponded to this order by letter dated
of privilege insofar as it was premised
on V. Sirica, doctrines tl
February 6, 1974. Rather than setting
on the public interest in confidentiality,
analogy, we think controll
forth the particularized claims and rea-
because, in its view, "the President's un-
In Nixon V. Sirica, we
11. Order, No. 73-2086 (D.C.Cir., Dec. 28,
14. Order, C.A. 1593-73 (D.D.C.- Jan. 25.
ed with a challenge to a
1973) (en banc).
1973) ; Joint Appendix at 144.
FORD
District Court, entered
12. 159 U.S.App.D.C. 58, 73-76, 487 F.2d 700,
15. Order, C.A. 1593-73 (D.D.C. Jan. 25,
716-718 (1973).
1974) ; Joint Appendix at 139-140.
8. Id.
16. Joint Appendix at 162-63.
9. 487 F.21 at 704.
13. Order, C.A. 1593-73 (D.D.C. Jan. 25,
1974) ; Joint Appendix at 148.
17. 370 F.Supp. at 522.
20. 4ST F.2d at 708-716.
498 F.2d-46Vz
SENATE SELECT COMMITTEE ON PRES. CAM. ACT. V. NIXON
729
Cite as 498 F.2d 725 (1974)
willingness to submit the tapes for the
enforcing a grand jury subpoena, re-
Court's in camera ex parte inspection or
quiring the President to produce the
in any other fashion to particularize his
subpoenaed items to enable the Court to
claim of executive privilege precludes ju-
determine by in camera inspection
dicial recognition of that privilege on
whether the items were exempted from
confidentiality grounds." The Court
disclosure by evidentiary privilege.¹ 19 In
then, in the discharge of its duty as a
his challenge to this order, the President
court of equity, undertook independently
argued that the District Court had acted
to weigh the public interest in safe-
beyond its jurisdiction He contended
guarding pending criminal prosecutions
that he is absolutely immune in all cases
from possibly prejudicial pretrial pub-
from the compulsory process of the
licity, againsti the Committee's asserted
courts, and that whenever, in response
need for the subpoenaed tapes. In the
to a grand jury subpoena, he interposes
particular circumstances of this case, in-
a formal claim of privilege, that claim
cluding the fact that the tapes had al->
without more disables the courts from
ready been made available to the June,
inquiring by any means into wheth er
1972, grand jury of this district, the
the privilege is applicable. We rejected
Court found it necessary to assign prior-
both contentions, holding, contrary to
ity to the public interest in 'the integri-
the President, that at least with respect
ty of the criminal process, rather than
to grand jury subpoenas, it is the re-
the Committee's need." It therefore dis-
sponsibility of the courts to decide
missed the Committee's suit without
whether and to what extent executive
prejudice.
privilege applies.2 And we held further
that, generally, "application of Execu-
II.
tive privilege depends on a weighing of
The Select. Committee contends that,
the public interest protected by the priv-
once having determined that the Presi-
ilege against the public interests that-
dent's general. confidentiality privilege
would be served by disclosure in a par-
failed, the District Court had no au-
ticular case."21
thority to engage in a balancing of in-
As in the present case, our attention
terests, where the result was to pass
in Nixon V. Sirica was directed solely to
judgment on the magnitude of need un-
one species of executive privilege-that
derlying the Committee's decision to au-
premised on "the great public interest in
thorize and issue a subpoena Alterna--
maintaining the confidentiality of con-
tively, the Committee argues that any
versations that take place in the Presi-
such balancing must favor, as more ur-
dent's performance of his official du-
gently affected with the public interest
ties."** We recognized this great public
the Committee's asserted need over the
interest, analogizing the privilege, on the
public interest in the fairness of the
basis of its purpose, "to that between a
criminal process. We find it unneces-
congressman and his aides under the
sary to reach either contention. Neither
Speech and Debate Clause; to that
the Committee's position nor, if we read
among judges, and between judges and
it correctly, that of the District Court
their law clerks; and
to that
accurately. reflects the doctrines of Nix-
contained in the fifth exemption to the
on V. Sirica, doctrines that, at least by
Freedom of Information Act." 23 We
analogy, we think controlling here.
recognized, moreover, that protection of
In Nixon V. Sirica, we were confront-
the presidential decision-making process
ed with a challenge to an order of the
requires a promise that, as a general
District Court, entered as a means of
matter, its confidentiality would not be
18. Id.
21. 487 F.2d at 716.
19. 487 F.2d at 704.
22. 487 F.2d at 717.
20. 487 F.2d at 708-716.
23. Id.
LIBRARY
498 F.2d-461/2
SENATE SELECT
730
498 FEDERAL REPORTER, 2d SERIES
dent's obligation to respond
invaded, even to the limited extent of a
general presumption of privilege premis-
poena is carried forward in
judicial weighing in every case of a
ed on the public interest in the confiden-
tion to submit subpoenaed
claimed necessity for confidentiality
tiality of the presidential decision-mak-
the Court, together with 1
against countervailing public interests of
ing process We held that it was within
claims that the Court will v
the moment.
the power of the District Court "[to]
whatever public interest
[1] We coneluded that presidential
order disclosure of all portions of the
might serve. The presum
conversations are "presumptively privi-
tapes relevant. to matters within the
any judicially compelled i
leged," even from the limited intrusion
proper scope of the grand jury's investi-
presidential confidentialit
represented by in camera examination of
gations, unless the Court judges that the
showing requisite to its
the conversations by at court 24 The pre-
public interest served by nondisclosure
with at least equal force her
sumption can be overcome only by an ap
of particular statements or information
Particularly in light of
propriate showing of public need by the
outweighs the need for that information
have occurred since this I
party seeking access to the conversa-
demonstrated by the grand jury."26 It
begun and, indeed; since
tions. In Nixon Sirica, such a show-
became, therefore, incumbent upon the
Court issued its decision,
ing was made by the Special Prosecutor:
President to make particularized show-
the Select Committee has f
ings in justification of his claims of
[W]e think that this presumption of
the requisite showing. In
privilege, and upon the District Court to
privilege premised on the public inter-
low and in its initial b)
follow procedures, including in camera
est in confidentiality must fail in the
Court, the Committee st
inspection, requiring careful deliberation
face of the uniquely powerful showing
seeks the materials in ques
before even the demonstrated need of
made by the Special Prosecutor in this
to resolve particular confli
the grand jury might be satisfied.
case. The function of the grand jury,
luminous testimony it has
mandated by the Fifth Amendment
flicts relating to "the exte
for the institution of federal criminal
III.
sance in the executive k
prosecutions for capital or other seri-
The staged decisional structure estab-
most importantly, the pos
ous crimes, is not only to indict per-
lished in Nixon V. Sirica was designed to
ment of the President hi
sons when there is probable cause to
ensure that the President and those
Committee has argued that
believe they have committed crime,
upon whom he directly relies in the per-
ny before it makes out "I
but also to protect persons from pros-
formance of his duties could continue to
case that the President ai
ecution when probable cause does not
work under a general assurance that
associates have been involv
exist. As we have noted, the Special
their deliberations would remain confi-
conduct," that "the mat
Prosecutor has made a strong showing
dential. So long as the presumption
bear on that involvemen
that the subpoenaed tapes contain evi-
that the public interest favors confiden-
these facts alone must de
dence peculiarly necessary to the
tiality can be defeated only by a strong
sumption of privilege that
earrying out of this vital function-
showing of need by another institution
wise prevail.
evidence for which no effective substi-
of government-a showing that the re-
[2] It is true, of col
tute is available. The grand jury
sponsibilities of that institution cannot
Executive cannot, any m
here is not engaged in a general fish-
responsibly be fulfilled without access to
other branches of governi
ing expedition, nor does it seek in any
records of the President's deliberations
general confidentiality
way to investigate the wisdom of the
we believed in Nixon v. Sirica, and
shield its officials and el
President's discharge of his discre-
continue to believe, that the effective
investigations by the prop
tionary duties. On the contrary, the
functioning of the presidential office
tal institutions into pos
grand jury seeks evidence that may
will not be impaired. Contrary, there-
wrongdoing." The Con
well be conclusive to its decisions in
fore, to the apparent understanding of
on-going investigations that are en-
the District Court,2 we think that Nix-
30. Brief of the Senate Sele
tirely within the proper scope of its
on V., Sirica requires a showing of the
al., at 27-28.
authority.25
order made by the grand jury before a
31. E.g., Supplemental Mem
We concluded that this strong showing
generalized claim of confidentiality can
Senate Select Committee, et
of need was sufficient to overcome the
be said to fail, and before the Presi-
32. Committee for Nuclear
Seaborg, 149 U.S.App.D.C.
27. 487 F.2d at 718-722.
FORD
788, 794 (1971). See G
24. 487 F.2d at 705, 717-718.
States, 408 U.S. 606, 627,
25. 487 F.2d at 717 (citations omitted).
28. 487 F.2d at 722.
25. 487 F.2d at 718.
29. See text and note at note 18, supra.
0.76879
LEd.24 583 (1972).
SENATE SELECT COMMITTEE ON PRES. CAM. ACT. V. NIXON
731
Cite as 498 F.2d 725 (1974)
dent's obligation to respond to the sub-
this as to its own privileges in Gravel V.
poena is carried forward into an obliga-
United States, as did the judicial
tion to submit subpoenaed materials to
branch, in a sense, in Clark V. United
the Court, together with particularized
States, 34 and the executive branch itself
claims that the Court will weigh against
in Nixon V. Sirica. But under Nixon V.
[to]
whatever public interests disclosure
Sirica, the showing required to overcome
the
might serve The presumption against
the presumption favoring confidentiality
the
any judicially compelled intrusion into
turned, not on the nature of the presi-
esti-
presidential confidentiality, and the
dential conduct that the subpoenaed ma-
the
showing requisite to its defeat, hold
terial might reveal, but, instead, on the
with at least equal force here.
nature and appropriateness of the func-
Particularly in light of events that
tion in the performance of which the
have occurred since this litigation was
material was sought, and the degree to
It
begun and, indeed, since the District
which the material was necessary to its
the
Court issued its decision, we find that
fulfillment. Here also our task requires
how-
the Select Committee has failed to make
and our decision implies no judgment
of
the requisite showing. In its papers be-
whatever concerning possible presiden-
to
low and in its initial briefs to this
tial involvement in culpable activity. On
Court, the Committee stated that it
the contrary, we think the sufficiency of
seeks the materials in question in order
the Committee's showing must depend
of
to resolve particular conflicts in the vo-
solely on whether the subpoenaed evi-
luminous testimony it has heard, con-
dence is demonstrably critical to the re-
flicts relating to "the extent of malfea-
sponsible fulfillment of the Committee's
sance in the executive branch," and,
functions.
stab-
most importantly, the possible involve-
[3] In its initial briefs here, the,
to
ment of the President himself. 30 The
Committee argued that it has shown ex-
those
Committee has argued that the testimo-
actly this. It contended that resolution,
per-
ny before it makes out "a prima facie
on the basis of the subpoenaed tapes, of
to
case that the President and his closest
the conflicts in the testimony before it
that
associates have been involved in criminal
"would aid in a determination whether
conduct," that "the materials sought
legislative involvement in political cam-
bear on that involvement," and that
paigns is necessary" and "could help en-
these facts alone must defeat any pre-
gender the public support needed for ba-
trong
sumption of privilege that might other-
sic reforms in our electoral system." 36
wise prevail.
Moreover, Congress has, according to the
re-
[2] It is true, of course, that the
Committee, power to oversee the opera-
Executive cannot, any more than the
tions of the executive branch, to investi-
to
other branches of government, invoke a
gate instances of possible corruption and
general confidentiality privilege to
malfeasance in office, and to expose the
and
shield its officials and employees from
results of its investigations to public
investigations by the proper governmen-
view. The Committee says that with re-
tal institutions into possible criminal
spect to Watergate-related matters, this
wrongdoing.** The Congress learned
power has been delegated to it by the
of
Nix-
30. Brief of the Senate Select Committee, et
33. 408 U.S. 606, 92 S.Ct. 2614, 33 L.Ed.2d
the
al., at 27-28.
583 (1972).
a
31. E.g., Supplemental Memorandum of the
34. 289 U.S. 1, 53 S.Ct. 465, 77 L.Ed. 993
can
Senate Select Committee, et al., at 2.
(1933).
Presi-
32. Committee for Nuclear Responsibility V.
35. 487 F.2d at 718
Seaborg, 149 U.S.App.D.C. 385, 463 F.2d
788, 794 (1971). See Gravel v. United
36. Brief of Senate Select Committee, et al.,
States, 408 U.S. 606, 627, 92 S.Ct. 2614, 33
at 27-28.
L.Ed.2d 583 (1972).
SENATE S?
732
498 FEDERAL REPORTER, 2d SERIES
Senate, and that to exercise its power
There is a clear difference between Con-
however, the origina
responsibly, it must have access to the
gress's legislative tasks and the respon-
five tapes subject t
subpoena have been
subpoenaed tapes.
sibility of a grand jury, or any institu-
President to the Dis
We turn first to the latter contention.
tion engaged in like functions. While
ant to that Court's D:
In the circumstances of this case, we
fact-finding by a legislative committee
in the District (
need neither deny that the Congress
is undeniably a part of its task, legisla-
Thus, as the Comm
may have, quite apart from its legislative
tive judgments normally depend more on
knowledged at oral
responsibilities, a general oversight pow-
the predicted consequences of proposed
legislative actions and their political ac-
poena now applies 01
er, nor explore what the lawful reach of
that power might be under the Commit
ceptability, than on precise reconstruc-
the tapes that remai
tee's constituent resolution. Since pas-
tion of past events; Congress frequently
possession. This bei
Committee would E
sage of that resolution, the House Com-
legislates on the basis of conflicting in-
formation provided in its hearings. In
measure, the same ]
mittee on the Judiciary has begun an in-
quiry into presidential impeachment.
contrast, the responsibility of the grand
tion with respect t
jury turns entirely on its ability to de-
tapes as it claims
The investigative authority of the Judi-
ciary Committee with respect to presi-
termine whether there is probable cause
the transcripts.
to believe that certain named individuals
The Committee al
dential conduct has an express constitu-
tional source. Moreover, so far as
did or did not commit specific crimes.
portions of the con'
these subpoenaed tapes are concerned,
If, for example, as in Nixon V. Sirica,
deleted from the tr:
the investigative objectives of the two
one of those crimes is perjury concern
tions that they con
committees substantially overlap both
ing the content of certain conversations,
lated to Watergate
the grand jury's need for the most pre-
Presidential action,
are apparently seeking to determine,
among other things. the extent, if any,
cise evidence, the exact text of oral
the tapes played
of presidential involvement in the Wat-
statements recorded in their original
equipment, portions
ergate "break-in" and alleged "cover-up."
form, is undeniable. We see no compa-
designate as "inau
And, in fact, the Judiciary. Commit-
rable need in the legislative process, at
derstood. Finall:
argues that inflect
tee now has in its possession copies of
least not in the circumstances of this
each of the tapes subpoenaed by the Se-
case. Indeed, whatever force there
that the tapes wo
lect Committee. Thus, the Select Com-
might once have been in the Committee's
pensable to a corre
mittee's immediate oversight need for
argument that the subpoenaed materials
conversations. T
are necessary to its legislative judg-
however, shown no
the subpoenaed tapes is, from a congres-
sional perspective, merely cumulative.
ments has been substantially under-
materials deleted
Against the claim of privilege, the only
mined by subsequent events.
may possibly have
vance to the subje
oversight interest that the Select Com-
By order of May 2, 1974, this Court
and to the areas in
mittee can currently assert is that of
took judicial notice of the President's
legislation. It poi
having these particular conversations
public release of transcripts, with par-
islative decisions t
scrutinized simultaneously by two com-
tial deletions, of each of the tapes at is
be made without
mittees. We have been shown no evi-
sue here. In light of the President's ac-
uniquely contained
dence indicating that Congress itself at-
tion we requested the Select Committee
out resolution of
taches any particular value to this inter-
to file a supplemental memorandum stat-
est. In these circumstances, we think
the transcripts m
ing whether the Committee "has a
portantly, perhaps
the need for the tapes premised solely on
present sense of need for the materials
guities relate to
an asserted power to investigate and in-
subpoenaed" and, if so, in what specific
tions, there is I
form cannot justify enforcement of the
respects the transcripts now available to
findings of the H
Committee's subpoena,
the Committee, and to the public gener-
Judiciary and, ev
The sufficiency of the Committee's
ally, are deficient in meeting that need
Representatives i
showing of need has come to depend,
In its response to this order, the Com-
inconclusive or lc
therefore, entirely on whether the sub-
mittee states, first, that it needs access
Select Committe
poenaed materials are critical to the per-
to the tapes in order to verify the accu-
cess of its own.
formance of its legislative functions.
racy of the public transcripts.
In
Fact
37. E.g., Reply Brief of Senate Select Com-
GERNLD:
40. See In re Gr
38. Const., art. I, § 2, 15.
Tecum to Nixon
mittee, et al., at 21-23.
39. See 487 F.2d at 718.
1973).
SENATE SELECT COMMITTEE ON PRES. CAM. ACT. V. NIXON
733
Cite as 498 F.2d 725 (1974)
however, the originals of four of the
IV.
five tapes subject to the Committee's
In approaching our judicial function,
subpoena have been transmitted by the
we have no doubt that the Committee
President to the District Court, pursu-
has performed and will continue to per-
ant to that Court's order, and are now
form its duties fully in the service of
in the District Court's possession
the nation We must, however, consider
Thus, as the Committee's counsel ac
the nature of its need when we are
knowledged at oral argument, the sub-
called upon, in the first such case in our
poena now applies only to the copies of
history, to exercise the equity power of a
the tapes that remain in the President's
court at the request of a congressional
possession. This being so, however, the
committee, in the form of a judgment
Committee would encounter, in some
that the President must disclose to the
measure, the same problem of verifica-
Committee records of conversations be-
tion with respect to four of the five
tween himself and his principal aides.
tapes as it claims now to confront in
We conclude that the need demonstrated
the transcripts.
by the Select Committee in the peculiar
The Committee also says that certain
circumstances of this case, including the
portions of the conversations have been
subsequent and on-going investigation of
deleted from the transcripts, with nota-
the House Judiciary Committee, is too
tions that they contain material unre-
attenuated and too tangential to its
lated to Watergate" or "unrelated to
functions to permit a judicial judgment
Presidential action," 41 and that, were
that the President is required to comply
the tapes played on highly sensitive
with the Committee's subpoena. We
equipment, portions that the transcripts
therefore affirm the order dismissing
designate as "inaudible" might be un-
the Committee's action without preju-
derstood. Finally, the Committee
dice, although on grounds that differ
argues that inflection and tone of voice
from those announced by the District
that the tapes would supply are indis-
Court.
pensable to a correct construction of the
Affirmed.
conversations. The Committee has,
however, shown no more than that the
MacKINNON, Circuit Judge (concur-
materials deleted from the transcripts
ring):
may possibly have some arguable rele-
vance to the subjects it has investigated
I concur in the result reached by the
and to the areas in which it may propose
foregoing opinion but have some addi-
legislation. It points to no specific leg-
tional comments.
islative decisions that cannot responsibly
As I argued in dissent in Nixon V.
be made without access to materials
Sirica, 159 U.S.App.D.C. 58, 87-120, 487
uniquely contained in the tapes or with-
F.2d 700, 729-762 (1973), the President,
out resolution of the ambiguities that
as distinct from the executive establish-
the transcripts may contain. More im-
ment generally, possesses a constitution-
portantly, perhaps, insofar as such ambi-
ally founded privilege enabling him to
guities relate to the President's own ac-
protect the confidentiality of confer-
tions, there is no indication that the
ences with his advisors. Recognition of
findings of the House Committee on the
that presidential privilege would dispose
Judiciary and, eventually, the House of
of the demands made by the instant sub-
Representatives itself, are so likely to be
poena, but failing majority consensus on
inconclusive or long in coming that the
this point I concur generally in the rea-
Select Committee needs immediate ac-
soning of the foregoing opinion as emo
RD,
cess of its own.
bracing an accurate analysis and sound
40. See In re Grand Jury Subpoena Duces
41. Supplemental Memorandum of the Senate
Tecum -to Nixon, 360 F.Supp. 1 (D.D.C.
Select Committee in Response
80
this
1973).
Court's Order of May 2, 1974, at 3.
734
498 FEDERAL REPORTER, 2d SERIES
application of the principles established
3. Telecommunica
in Nixon V. Sirica. This position evi-
CAPITAL TELEPHONE COMPANY,
When one a]
dences no retreat from my previously
INC., Appellant,
two available fr
expressed views on the force, validity
qualified applicar
and impórtance of congressional subpoe-
eral Communica
FEDERAL COMMUNICATIONS COM-
nas, id. at 95-96, 487 F.2d at 737-738,
MISSION, Appellee,
grant one freque.
nor does it reflect a comparatively higher
matter of soun(
esteem for judicial subpoenas. Rather,
Boris and Annette F. Squire, d/b/a Air
tions Act of 1934
Page, Intervenor.
my concurrence today is premised on the
§ 307(b).
No. 72-1715.
basic proposition that enforcement of
any subpoena, whether congressional or
United States Court of Appeals,
4. Corporations €
judicial, depends in the first instance
District of Columbia Circuit.
A corporate
upon an assessment of the immediate
garded in the in
Argued Oct. 30, 1973.
purpose, object and need which prompt-
ience, fairness ar
ed its issuance. Thus, even though rec-
Decided May 24, 1974.
ognizing that the legislative function is
3. Corporations e
no less important than the prosecutorial,
Substantial
The Federal Communications Com-
agree that the Senate Committee has
applicant was wl
mission denied corporate applicant's =>-
failed to demonstrate a present need of
vidual who was
plication for authority to construct and
sufficient urgency to overcome even the
manager of the (
operate a one-way radio-paging station
qualified presidential privilege recog-
same individual
and the corporate applicant appealed
from the same
nized by the majority in Nixon V. Sirica.
The Court of Appeals, MacKinnon, Cir-
Additionally, while I would not charac-
that was substa
cuit Judge, held that the Federal Com-
terize the Senate Committee's need as
corporation's suj
munications Commission validly exercis-
eral Communie
"merely cumulative," it bears particular
ed its discretion in piercing the corporate
emphasis that legislation involves a co-
pierce the corpor
veil of corporation applicant for highe
operative effort of both the House and
order to carry 0
band radio-paging channel, in treating
munications Act
the Senate, that the House Committee on
the corporate applicant and its individual
the Judiciary already possesses the
cient and equital
owner as one applicant, and in only
service in alloca
recordings sought here, and that these
granting the individual applicant's sp-
channels for pag
materials more than likely eventually
plication.
cations Act of 1
will be released to the public.
Affirmed
A. $ 307(b).
WILKEY, Circuit Judge (concur-
& Telecommunie
ring):
Corporations (-1.6(1)
Where Ft
The Federal Communications Coz
On my own analysis our logical first
Commission nc
mission validly exercised its discretion
conclusion should be that the constitu-
transmitter belo
in piercing the corporate veil of corpora-
plicant would e
tional principle of separation of powers
tion applicant for high-band radio-pag-
Lions market co
makes the issue here a political question
ing channel, in treating the corporate
and noted that
and therefore not justiciable (Baker V.
applicant and its individual owner as
did not receive I
Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.
one applicant, and in only granting the
transmitter, ap
Ed.2d 663 (1962) Powell V. Mc-
individual applicant's application. Com-
authority to ad.
Cormack, 395 U.S. 486, 89 S.Ct. 1944, 23
munications Act of 1934, § 1 ct seq. 4.
to reach any del
L.Ed.2d 491 (1968), and Nixon V. Sirica,
U.S.C.A. § 151 et seq.
al applicant W:
159 U:S.App.D.C. 120-157, 487 F.2d 700,
are wide servi
2. Telecommunications <>388
762-799 (1973) (Wilkey, J., dissent-
minum denied
By directing the Federal Communi-
ing) however, I agree that, taking
cations Commission to provide fair and
Bin wholly own
téxant for allow
the majority opinion in Nixon V. Sirica
equitable distribution of radio
for radio-pagia
as still prevailing, Chief Judge Bazelon's
the Communications protects
Licens Act
opinion is likewise a sound basis for the
the general public and other
A. 1 151 et
action we take, and I therefore join
ers. Communications Act of 1934, I 1
therein without further reservation.
et seq., 47 U.S.C.A. $ 151 et seq:
UNI
3090
94 SUPREME COURT REPORTER
1. Courts 385(1/11/2)
and hastens ultimate terminatio
UNITED STATES, Petitioner,
Supreme Court granted special
gation., 28 U.S.C.A. § 1291.
prosecutor's petition and President's re-
5. Criminal Law 1023(2)
V.
sponsive cross petition for certiorari be-
Order of district court r
Richard M. NIXON, President of the
fore judgment with respect to Presi-
United States, et al.
President to produce, for in
dent's appeal to Court of Appeals from
inspection, tape recordings at
Richard M. NIXON, President of the
district court's orders denying motion to
ments relating to conversation
United States, Petitioner,
quash subpoena directing President to
aides and advisors subpoenaed b
produce certain tape recordings and doc-
V.
prosecutor for use in pending
uments relating to conversations with
UNITED STATES.
prosecution was final and ap
aides and advisors for use in pending
even though orders requiring pr
Nos. 73-1766, 73-1834.
criminal prosecution, and denying mo-
are not ordinarily appealable.
tion to expunge action of federal grand
C.A. § 1291.
Argued July 8, 1974.
jury naming President as unindicted
coconspirator, because of public impor-
6. Courts
Decided July 24, 1974."
tance of issues presented and need for
Where district court order I
their prompt resolution. 28 U.S.C.A. §§
requisite finality for appeal- to
1254(1), 2101(E), Supreme Court Rules,
Appeals, and appeal was timely
Prosecution of former government
rule 20.
other procedural requirements W
officials and presidential campaign offi-
appeal was properly "in", Cour
cials for conspiracy to defraud United
2. Criminal Law 1131(2)
peals at. time of filing of peti
States and to obstruct justice, and for
Resolution of whether federal grand.
certiorari before judgment, and
other offenses, wherein special prosecu-
jury acted within its authority in nam-
Court thus had jurisdiction
tor caused third-party subpoena duces
ing President as unindicted coconspir-
upon granting of petition.. 28
tecum to be issued directing the Presi-
ator, raised by President's cross pe-
§ 1254(1).
dent to produce tape recordings and doc-
tition for certiorari before judgment,
7. Constitutional Law -76
uments relating to conversations with
was unnecessary to resolution of ques-
Executive Branch has exch
aides and advisors. The United States
tion presented by special prosecutor's
thority and absolute discretion
District Court for the District of Colum-
petition for certiorari before judgment
whether to prosecute case
bia, denied the President's motion to
with respect to whether President's
quash subpoena, -F.Supp. - and an
claim of absolute executive privilege as
8. Courts -281
appeal was taken. Certiorari before
to tape recordings and documents relat-
Mere assertion of claim 01
judgment was granted to bring matter
ing to his conversations with aides and
branch dispute' does not. opera
before Supreme Court before disposition
advisors subpoenaed by special prosecu-
feat jurisdiction; justiciability
by Court of Appeals. The Supreme
tor for pending prosecution was to pre-
depend on such a surface inquiry
Court, Mr. Chief Justice Burger, held
vail; accordingly, cross petition for cer-
tiorari before judgment was dismissed
9. Courts -300
that dispute was justiciable; that Dis-
trict Court was not shown to have erred
as improvidently granted.
Courts must look behind na
symbolize parties to determine
in determining that special prosecutor's
showing of relevancy, admissibility, and
3. Courts 405(12.1)
justiciable case or controv
specificity was sufficient to warrant is-
Finality requirement of statute re-
presented.
suance of order; and that President's
lating to appeals to Courts of Appeals
generalized interest in confidentiality,
from final decisions of district courts
10. Criminal Law -639(2)
unsupported by claim of need to protect
embodies strong congressional policy
So long as Attorney Genera
against piecemeal reviews, and against
lation vesting authority in speci
military, diplomatic, or sensitive nation-
al security secrets, could not prevail-
obstructing or impeding ongoing judicial
cutor was extant, it had force
against special prosecutor's demonstrat-
proceeding by interlocutory appeal. 28
Executive Branch was bound by
ed, specific need for the tape recordings
U.S.C.A. § 1291.
United States as sovereign com
three branches was bound to res
and documents.
4. Courts 405(12.1)
enforce it.
Affirmed.
Finality requirement of statute re-
lating to appeals to Courts of Appeals
11. Courts 300
Mr. Justice Rehnquist did not par-
from final decisions of district courts
In constitutional sense, "cc
ticipate.
ordinarily promotes judicial efficiency
means more than disagreen
UNITED STATES V. NIXON
3091
Cite as 94 S.Ct. 3090 (1974)
and hastens ultimate termination of liti- conflict; rather it means kind of contro-
gation. 28 U.S.C.A. § 1291.
versy courts traditionally resolve.
5. Criminal Law 1023(2)
See publication Words and Phrases
Order of district court requiring
for other judicial constructions and
President to produce, for in camera
definitions.
inspection, tape recordings and docu-
12. Criminal Law -627.8(6)
ments relating to conversation with
Special prosecutor had standing to
aides and advisors subpoenaed by special
seek judicial enforcement of subpoena
prosecutor for use in pending criminal
requiring President to produce tape
prosecution was final- and appealable,
recordings and documents relating to
even though orders requiring production
conversations with aides and advisors
are not ordinarily appealable. 28 U.S.
for use in pending criminal prosecution."
C.A. § 1291.
13. Constitutional Law -72
6. Courts 385(1/11/2)
Courts 281
Where district court order possessed
Dispute between special prosecutor
requisite finality for appeal to Court of
and President with respect to production
Appeals, and appeal was timely filed and
of tape recordings and documents. relat-
other procedural requirements were met,
ing to President's conversations with
appeal was properly "in" Court of Ap-
aides and advisors, for use in pending
peals at time of filing of petition for
criminal prosecution, was justiciable,
certiorari before judgment, and Supreme
even though both parties were officers
Court thus had jurisdiction of cause
of Executive Branch U.S.C.A.Const.
upon granting of petition. 28 U.S.C.A.
art. 3
§ 1254(1).
14. Criminal Law €627.6(2)
7. Constitutional Law 76
Subpoens for documents may be
Executive Branch has exclusive au-
quashed in criminal case if their produc-
thority and absolute discretion to decide
tion would be unreasonable or oppres-
whether to prosecute case.
sive but not otherwise Fed Rules
& Courts -281
Crim Proc. rule 17(c), 18 U.S.C.A
Mere assertion of claim of "intra-
15. Criminal Law 027.5(4)
branch dispute" does not operate to de-
Subpoena duces tecum in criminal
feat jurisdiction; justiciability does not
case is not intended to provide means of
depend on such a surface inquiry.
discovery: Fed.Rules Crim Proc. rule
17(c), 18 U.S.C.A.
9. Courts -300
Courts must look behind names that
16. Criminal Law €627.5(4)
symbolize parties to determine whether
Subpoena duces tecum in criminal
justiciable case or controversy is
case is intended to expedite trial by pro-
presented.
viding time and place before trial for
inspection of subpoenaed materials.
10. Criminal Law €-639(2)
So long as Attorney General's regu-
17. Criminal Law -627.8(3)
lation vesting authority in special prose-
In order to require production of
cutor was extant, it had force of law,
documents prior to criminal trial, party
Executive Branch was bound by it, and
moving for subpoena duces tecum must
United States as sovereign composed of
show that documents are evidentiary
three branches was bound to respect and
and relevant, that they are not otherwise
enforce it.
procurable reasonably in advance of trial
by exercise of due diligence, that party
11. Courts -300
cannot properly prepare for trial with-
In constitutional sense, "controver-
out such production and inspection in
sy" means more than disagreement and
advance of trial, that failure to obtain
3092
94 SUPREME COURT REPORTER
branch of
such inspection may tend unreasonably
matter be substantial independent evi-
Crim.Proc. r
to delay trial, and that application is
dence of conspiracy, at least enough to
made in good faith and is not intended
take question to jury.
30. Constitut
as general "fishing expedition." Fed.
23. Criminal Law 736(1)
Rules Crim.Proc. rule 17(c), 18 U.S.C.A.
In perf
Whether there is substantial inde-
tutional dut
18. Criminal Law
pendent evidence of conspiracy necessary
ment must
€627.5(4), 627.6(2), 627.8(4)
to reception of testimony under cocon-
tion, and int
Where tape recordings and docu-
spirator exception to hearsay rule is
any branch
ments relating to President's conversa-
question of admissibility of evidence to
others.
tions with aides and advisors were una-
be decided by trial judge.
vailable except from President, there
was likelihood that each tape contained
24. Criminal Law 423(4), 427(2)
31. Constitut
Declarations of unindicted cocon-
conversations relevant to offenses
It is en
charged, there were valid potential evi-
spirators may be admissible against
duty of the
named defendants upon sufficient show-
what the la
dentiary uses for material in addition to
possible impeachment of witnesses in
ing, by independent evidence, of conspir-
pending criminal prosećution, and possi-
acy among one or more defendants and
32. Constitute
declarant, and that declarations at issue
ble transcription of tapes might take
Suprem
significant period of time, district court
were in furtherance of that conspiracy.
terpret clair
properly authorized issuance of subpoe-
25. Witnesses ©331/2
spect to po
na duces tecum to compel production,
Recorded conversations may be ad-
enumerated
subject to in camera inspection, for use
missible for limited purpose of impeach-
by special prosecutor in pending crimi-
ing credibility of any defendant who tes-
33. Constitu
nal prosecution of former government
tifies or any other coconspirator who
Notwit
officials and presidential campaign offi-
testifies.
branch mus
cials for conspiracy to defraud United
er can no m
26. Criminal Law ©627.7(4)
States and to obstruct justice, and for
Branch tha
Generally, need for evidence to im-
other offenses. Fed.Rules Crim.Proc.
peach witnesses is insufficient to re-
judiciary V
rule 17(c), 18.U.S.C.A.
quire its production in advance of trial.
with judici
dential veto
19. Criminal Law 412(1)
27. Criminal Law ©627.5(2)
Hearsay rule does not automatically
Enforcement of pretrial subpoena
34. Constitu
bar all out-of-court statements by de-
duces tecum must necessarily be commit-
fendant in criminal case.
Judicia
ted to sound discretion of trial court in
extended to
20. Criminal Law 412(1)
criminal case, since necessity for subpoe-
privilege w
Out-of-court statements by defend-
na most often turns upon determination
and document
ant are declarations that surmount
of factual issues.
with aidès
objections based on hearsay rule, and at
least as to declarant are admissible for
28. Criminal Law 1158(2)
special pro
Without determination of arbitrari-
criminal pr
whatever inferences might be reasonably
ness or that trial court finding was
drawn.
without record support, appellate court
35. Constitu
21. Criminal Law 423(1), 427(2)
will not ordinarily disturb finding that
Silence
Declarations by one defendant may
applicant for subpoena duces tecum com-
to executiv
be admissible against other defendants
plied with federal criminal rule. Fed.
communica
upon sufficient showing, by independent
Rules Crim.Proc. rule 17(c), 18 U.S.C.A.
was not de
evidence, of conspiracy among one or
of privilege
more other defendants and declarant and
29. Criminal Law 1134(1)
that declarations at issue were in fur-
Where subpoena duces tecum is di
36. Constitu
rected to President in criminal case,
Neithe
therance of that conspiracy.
pellate review should be particularly me-
powers noi
22. Criminal Law 427(5)
ticulous to insure that standards of fed-
LIBRA.
high level
Under coconspirator exception to
eral criminal rule have been correctly
more, susta
hearsay rule, there must as preliminary
applied, in deference to coordinate
UNITED STATES V. NIXON
3093
Cite as 94 S.Ct. 3090 (1974)
branch
of
government.
Fed.Rules
dential privilege of immunity from judi-
Crim.Proc. rule 17(c), 18 U.S.C.A.
cial process under all circumstances.
37. Constitutional Law -72
30. Constitutional Law -50
Legitimate needs of judicial process
In performance of assigned consti-
may outweigh presidential privilege.
tutional duties, each branch of govern-
ment must initially interpret Constitu-
38. Constitutional Law 72
tion, and interpretation of its powers by
Right and duty of judiciary to de-
any branch is due great respect from
termine whether legitimate needs of ju-
others.
dicial process outweigh presidential
privilege does not free judiciary from
31. Constitutional Law -67
according high respect to representa-
tions made on behalf of President.
It is emphatically the province and
duty of the Judicial Department to say
39. Constitutional Law -76
what the law is.
Presidential communications are
presumptively privileged, and such privi-
32. Constitutional Law -67
lege is fundamental to operation of gov-
Supreme Court has authority to in-
ernment and inextricably rooted in sepa-
terpret claims of other branches with re-
ration of powers under Constitution.
spect to powers alleged to derive from
40. Criminal Law 627.5(1)
enumerated powers.
Need to develop all relevant facts in
adversary system of criminal justice is
33. Constitutional Law 72
fundamental and comprehensive; ends
Notwithstanding deference each
of criminal justice would be defeated if
branch must accord others, judicial pow-
judgments were to be founded on partial
er can no more be shared with Executive
or speculative presentation of facts.
Branch than President can share with
41. Criminal Law €627.5(1)
judiciary veto power or Congress share
Integrity of criminal justice system
with judiciary power to override presi-
and public confidence in system depends
dential veto.
on full disclosure of all facts within
framework of rules of evidence.
34. Constitutional Law -72
Judicial power under Constitution
42. Criminal Law €27.5(1, 3)
extended to President's claim of absolute
To insure that justice is done, it is
privilege with respect to tape recordings
imperative to function of court that
and documents relating to conversation
compulsory process be available for pro-
with aidès and advisors, subpoenaed by
duction of evidence needed either by
special prosecutor for use in pending
prosecution or by defense.
criminal prosecutions.
43. Criminal Law €627.5(6)
Privileges against forced disclosure
35. Constitutional Law -72
are exceptions to demand for every
Silence of Constitution with respect
man's evidence and are not lightly creat-
to executive privilege as to President's
ed nor expansively construed, since they
communications with aides and advisors
are in derogation of search for truth.
was not determinative of whether claim
44. Constitutional Law -76
of privilege had constitutional basis.
United States -26
36. Constitutional Law 72
To extent that President's interest
Neither doctrine of separation of
in confidentiality of communications
powers nor need for confidentiality of
with aides and advisors relates to effec-
high level communications can, without
tive discharge of President's powers;
is constitutionally based.
THE
more, sustain absolute unqualified presi-
0.78878
vusin
3094
94 SUPREME COURT REPORTER
45. Constitutional Law 266(1)
leged and to require special prosecutor.
Syllabus
Criminal Law €62(1)
to demonstrate that presidential materi-
Right of defendant to production of
al was essential to justice of pending
Following indictmen
all evidence at criminal trial has consti-
tion of federal statutes
criminal case.
tutional dimensions. U.S.C.A.Const.
members of the White E
51. Criminal Law -627.8(4)
Amends. 5, 6.
cal supporters of the Pr.
District court, upon determining
cial Prosecutor filed &
46. Constitutional Law 266(1)
that sufficient showing had been made
Fed.Rule Crim.Proc. 17(
Criminal Law €=662(1)
to rebut presumption of executive privi-
na duces tecum for the
Witnesses 2(2)
lege with respect to presidential tape
fore trial of certain tape
It is manifest duty of courts to vin-
recordings and documents subpoenaed by
relating to precisely ider
dicate guarantees of confrontation, com-
special prosecutor, properly ordered in
tions and meetings bet
pulsory process, and due process clauses,
camera examination of subpoenaed mate-
dent and others. The ]
and to accomplish that it is essential
rial.
ing executive privilege,
that all relevant and admissible evidence
52. Criminal Law ©627.8(4)
quash the subpoena.
be produced. U.S.C.A.Const. Amends. 5,
Upon district court's in camera
Court, after treating
6.
inspection of presidential tape record-
material as presumpti
47. Constitutional Law ©268(1, 5)
ings and documents, subpoenaed by spe-
concluded that the Sp
When ground for asserting execu-
cial prosecutor for use in pending crimi-
had made a sufficient S
tive privilege as to subpoenaed materials
nal prosecution, statements meeting test
the presumption and t]
sought for use in criminal trial is based
of admissibility and relevance were to be
ments of Rule 17(c) ha
only on generalized interest in confiden-
isolated and all other materials ex-
The court thereafter iss
tiality, it cannot prevail over fundamen-
cised, but district court was not limited
an in camera examinatic
tal demands of due process of law in
to representations of special prosecutor
naed material, having re
fair administration of criminal justice.
as to evidence sought by subpoena.
dent's contentions (a)
between him and the S₁
48. Criminal Law €627.5(6)
53. Criminal Law $627.8(4)
was nonjusticiable as
President's generalized interest in
In camera inspection of evidence is
tive" conflict and (b) t]
confidentiality, unsupported by claim of
procedure calling for scrupulous protec-
lacked authority to re
need to protect military, diplomatic, or
tion against any release or publication
dent's assertion of exe
sensitive national security secrets, could
of material not found by court probably
The court stayed its 01
not prevail against special prosecutor's
admissible in evidence and relevant to
pellate review, which th
demonstrated, specific need for tape
issues of trial for which it is sought.
sought in the Court 0
recordings and documents relating to
54. United States -26
Special Prosecutor the
conversations with presidential aides
It is necessary in public interest to
Court a petition for a
and advisors subpoenaed for use in
afford presidential confidentiality great-
before judgment (No.
pending criminal prosecution of former
est protection consistent with fair ad-
President filed a cross-
government officials. and presidential
ministration of justice.
a writ challenging the {
campaign officials for conspiracy to de-
(No. 73-1834) The Co
fraud United States and to obstruct jus-
55. Criminal Law €67.8(4)
writs. Held:
tice, and for other offenses.
District court, upon determining
that presidential tape recordings and
1. The District C
49. Criminal Law ©627.5(6), 627.8(1)
documents or portions thereof should not
appealable as a "final"
If President to whom subpoena
be released to special prosecutor under
S.C. § 1291, was theref
duces tecum is directed concludes that
subpoena duces tecum for use in pending
the Court of Appeals V
compliance would be injurious to public
criminal prosecution was to return mate-
for certiorari before ju
interest, he may properly invoke claim
rial under seal to its lawful custodian.
in this Court, and is
of privilege on return of subpoena.
fore this Court for re
56. Criminal Law -1192
50. Criminal Law €27.8(1)
Where matter came before Supreme
such an order is norma
Upon invocation of claim of privi-
Court during pendency of criminal pres
subject to appeal, an e
lege by President to whom subpoena
ecution and it was represented that time
in a "limited class of C:
duces tecum had been directed, it was
was of the essence, it was appropriate
* The syllabus constitute
duty of district court to treat subpoe-
that Supreme Court's mandate issue
opinion of the Court bu
naed material as presumptively privi-
forthwith.
by the Reporter of Deci
UNITED STATES V. NIXON
3095
Cite as 94 S.Ct. 3090 (1974)
Syllabus*
of immediate review would render im-
possible any review whatsoever- of an
Following indictment alleging viola-
individual's claims." United States y.
tion of federal statutes by certain staff
Ryan, 402 U.S. 530, 533, 91 S.Ct. 1580,
members of the White House and politi-
1582, 29 L.Ed.2d 85. Such an exception
cal supporters of the President, the Spe-
cial Prosecutor filed a motion under
is proper in the unique circumstances of
Fed.Rule Crim. Proc. 17(c) for a subpoe-
this case where it would be inappro-
priate to subject the President to the
na duces tecum for the production be-
fore trial of certain tapes and documents
procedure of securing review by resist-
relating to precisely identified conversa-
ing the order and inappropriate to re-
tions and meetings between the Presi-
quire that the District Court proceed by
a traditional contempt citation in order
dent and others. The President, claim-
ing executive privilege, filed a motion to
to provide appellate review. Pp.
3098-3099.
quash the subpoena. The District
Court, after treating the subpoenaed
2. The dispute between the Special
material as presumptively privileged,
Prosecutor and the President presents a
concluded that the Special Prosecutor
justiciable controversy. Pp. 3099-3102.
had made a sufficient showing to rebut
(a) The mere assertion of an "in-
the presumption and that the require-
trabranch dispute," without more, does
ments of Rule 17(c) had been satisfied.
not defeat federal jurisdiction. United -
The court thereafter issued an order for
States V. ICC, 337 U.S. 426, 69 S.Ct.
an in camera examination of the subpoe-
1410, 93 L.Ed. 1451. P. 3100.
naed material, having rejected the Presi-
dent's contentions (a) that the dispute
(b) The Attorney General by regu-
between him and the Special Prosecutor
lation has conferred upon the Special
was nonjusticiable as an "intra-execu-
Prosecutor unique tenure and authority
tive" conflict and (b) that the judiciary
to represent the United States and has
lacked authority to review the Presi-
given the Special Prosecutor explicit
dent's assertion of executive privilege.
power to contest the invocation of execu-
The court stayed its order pending ap-
tive privilege in seeking evidence
pellate review, which the President then
deemed relevant to the performance of
sought in the Court of Appeals. The
his specially delegated duties. While the
Special Prosecutor then filed in this.
regulation remains in effect, the Execu-
Court a petition for a writ of certiorari
tive Branch is bound by it. Accardi V.
before judgment (No. 73-1766) and the
Shaughnessy, 347 U.S. 260, 74 S.Ct. 499,
President filed a cross-petition for such
98 L.Ed. 681. Pp. 3100-3102.
a writ challenging the grand-jury action
(No. 73-1834) The Court granted both
(c) The action of the Special Prose-
writs. Held:
cutor within the scope of his express au-
thority seeking specified evidence pre-
1. The District Courts order was
liminarily determined to be relevant and
appealable as a "final" order under 28 U.
admissible in the pending criminal case,
S.C. § 1291, was therefore properly "in"
and the President's assertion of privi-
the Court of Appeals when the petition
lege in opposition thereto, present issues
for certiorari before judgment was filed
"of the type which are traditionally jus-
in this Court, and is now properly be-
ticiable," United States V. ICC, supra,
fore this Court for review. Älthough
337 U.S., at 430, 69 S.Ct., at 1413, and
such an order is normally not final and
the fact that both litigants are officers
subject to appeal, an exception is made
of the Executive Branch is not a bar to
in a "limited class of cases where denial
justiciability. P. 3102.
IOWA
*The syllabus constitutes no part of the
nience of the reader. See United States V.
opinion of the Court but has been prepared
Detroit Timber & Lumber Co., 200 U.S. 321,
by the Reporter of Decisions for the conve-
337, 26 S.Ct. 282, 287, 50 L.Ed. 499.
3096
94 SUPREME COURT REPORTER
3. From this Court's scrutiny of
cluded that the District Court erred in
Rule 17(c). The P
the materials submitted by the Special
ordering in camera examination of the
the Court of Appea
Prosecutor in support of his motion for
subpoenaed material, which shall now
United States' petiti
the subpoena, much of which is under
forthwith be transmitted to the District
fore judgment,¹ and
seal, it is clear that the District Court's
Court. P. 3110.
responsive cross-pe1
denial of the motion to quash comported
7. Since a President's communica-
before judgment,2 b
with Rule 17(c) and that the Special
tions encompass a vastly wider range of
importance of the i
Prosecutor has made a sufficient show-
sensitive material than would be true of
the need for their p
ing to justify a subpoena for production
an ordinary individual, the public inter-
U.S.
94
S
before trial. Pp. 3102-3105.
est requires that presidential confiden-
Ed.2d (1974).
4. Neither the doctrine of separa-
tiality be afforded the greatest protec-
On March 1, 1974
tion of powers nor the generalized need
tion consistent with the fair administra-
United States Dist
for confidentiality of high-level com-
tion of justice, and the District Court
District of Columbia
munications, without more, can sus-
has a heavy responsibility to ensure that
ment charging sever
tain an absolute unqualified presiden-
material involving presidential conversa-
with various offense
tial privilege of immunity from judicial
tions irrelevant to or inadmissible in the
acy to defraud the 1
process under all circumstances. See,
criminal prosecution be accorded the
obstruct justice. A
e. g., Marbury V. Madison, 1 Cranch
high degree of respect due a President
designated as such i:
137, 177, 2 L.Ed. 60; Baker V. Carr,
and that such material be returned un-
grand jury named t
369 U.S. 186, 211, 82 S.Ct. 691, 706, 7
der seal to its lawful custodian. Until
others, as an unind
L.Ed.2d 663. Absent a claim of need
released to the Special Prosecutor no in
On April 18, 1974,
to protect military, diplomatic, or sensi-
camera material is to be released to any-
Special Prosecutor,
tive national security secrets, the con-
one. Pp. 3110-3111.
poena duces tecum
fidentiality of presidential communi-
No.
73-1766,
F.Supp.
af-
cations is not significantly diminished
firmed; No. 73-1834, certiorari dis-
1. See 28. U.S.C. §§ 1:
by producing material for a criminal
missed as improvidently granted.
our Rule 20. See, c.
trial under the protected conditions
Tube Co. v. Sawyer,
of in camera inspection, and any ab-
72 S,Ct. 775, 863, 86
(1952) ,United State
solute executive privilege under Art.
Leon Jaworski and Philip A. Laco-
ers, 329 U.S. 708, i
II of the Constitution would plainly con-
vara, Washington, D. C., for United
373, 485, 91 L.Ed. 6:
flict with the function of the courts un-
States.
U.S. 258, 269, 67 S.
der the Constitution. Pp. 3105-3107.
884 (1947) Carter
James D. St. Clair, Washington, D.C.,
U.S. 238, 56 S.Ct.
5. Although the courts will afford
for the President.
(1936) Rickert Ric
the utmost deference to presidential acts
U.S. 110, 56 S.Ct. 37
Railroad Retirement
in the performance of an Art. II func-
Mr. Chief Justice BURGER delivered
295 U.S. 330, 344, 5
tion, United States V. Burr, 25 Fed.Cas.
the opinion of the Court.
Ed. 1468 (1935); U
pp. 187, 190, 191-192 (No. 14,694), when
Trust Co., 294 U.S.
[1,2] These cases present for review
a claim of presidential privilege as to
408, 79 L.Ed. 885 (19
the denial of a motion, filed on behalf of
materials subpoenaed for use in a crim-
the President of the United States, in
inal trial is based, as it is here, not on
2. The cross-petition
the case of United States V. Mitchell et
the issue whether the
the ground that military or diplomatic
al. (D.C.Crim. No. 74-110), to quash a
in its authority in na
secrets are implicated, but merely on the
third-party subpoena duces tecum issued
coconspirator. Since
ground of a generalized interest in con-
this issue unnecessal
by the United States District Court for
fidentiality, the President's generalized
question whether the
the District of Columbia, pursuant to
to-prevail, the cross-|
assertion of privilege must yield to the
Fed.Rule Crim.Proc. 17(c). The subpoe-
dismissed as improvi
demonstrated, specific need for evidence
na directed the President to produce cer-
remainder of this op
in a pending criminal trial and the fun-
the issues raised in
tain tape recordings and documents re-
damental demands of due process of law
19, 1974, the Preside
lating to his conversations with aides
disclosure and transi
in the fair administration of justice.
and advisers. The court rejected the
all evidence presented
Pp. 3107-3110.
President's claims of absolute executoye
lating to its action i
6. On the basis of this Court's ex-
privilege, of lack of jurisdiction, and of
as an unindicted co
this motion was defe
amination of the record, it cannot be con-
failure to satisfy the requirements ofco
ment of the case and i
94 S.Ct.-194½
UNITED STATES V. NIXON
3097
Cite as 94 S.Ct. 3090 (1974)
Rule 17(c). The President appealed to
to Rule 17(c) to the President by the
the Court of Appeals. We granted the
United States District Court and made
United States' petition for certiorari be-
returnable on May 2, 1974. This sub-
fore judgment,¹ and also the President's
poena required the production, in ad-
responsive cross-petition for certiorari
vance of the September 9 trial date, of
before judgment,² because of the public
certain tapes, memoranda, papers, tran-
importance of the issues presented and
scripts or other writings relating to cer-
the need for their prompt resolution -
tain precisely identified meetings be-
U.S. 94 S.Ct. , 40 L.
tween the President and others.⁵ The
Ed.2d - (1974).
Special Prosecutor was able to fix the
On March 1, 1974, a grand jury of the
time, place and persons present at these
United States District Court for the
discussions because the White House
District of Columbia returned an indict-
daily logs and appointment records had
ment charging seven named individuals 3
been delivered to him. On April 30, the
with various offenses, including conspir-
President publicly released edited tran-
acy to defraud the United States and to
scripts of 43 conversations; portions of
obstruct justice. Although he was not
20 conversations subject to subpoena in
designated as such in the indictment, the
the present case were included. On May
grand jury named the President, among
1, 1974, the President's counsel, filed a
others, as an unindicted coconspirator.⁴
"special appearance" and a motion to
On April 18, 1974, upon motion of the
quash the subpoena, under Rule 17(c).
Special Prosecutor, see n. 8, infra, a sub-
This motion was accompanied by a for-
poena duces tecum was issued pursuant
mal claim of privilege. At a subsequent
I. See 28. U.S.C. §§ 1254(1) and 2101(e) and
3. The seven defendants were John N. Mitch-
our Rule 20. See, e. g. Youngstown Sheet &
ell, H. R. Haldeman, John D. Ehrlichman,
Tube Co. V. Sawyer, 343 U.S. 937, 579, 584,
Charles W. Colson, Robert C. Mardian, Ken-
72 S.Ct. 775, 863, 865, 96 L.Ed. 1345, 1153
neth W. Parkinson, and Gordon Strachan.
(1952) -United States V. United Mine Work-
Each had occupied either a position of re-
ers, 329 U.S. 708, 709, 710, 67 S.Ct. 359,
sponsibility on the White House staff or the
373, 485, 91 L.Ed. 616, 617, 618 (1946), 330
Committee for the Re-Election of the Presi-
U.S. 258, 269, 67 S.Ct. 677, 684,91 L.Ed.
dent. Colson entered a guilty plea on anoth-
884 (1947) Carter V. Carter Coal Co., 298
er charge and is no longer a defendant.
U.S. 238, 56 S.Ct. 855, 80 L.Ed. 1160
(1936) Rickert Rice Mills V. Fontenot, 297
4. The President entered a special appearance
U.S. 110, 56 S.Ct. 374, 80 L.Ed. 513 (1936)
in the District Court on June 6 and request-
Railroad Retirement Board V. Alton R. Co.,
ed that court to lift its protective order re-
295 U.S. 330, 311, 55 S.Ct. 758, 760, 79 L.
garding the naming of certain individuals as
Ed. 1468 (1935); United States V. Bankers
coconspirators and to any additional extent
Trust Co., 294 U.S. 240, 243, 55 S.Ct. 407,
deemed appropriate by the Court. This mo-
408, 79 L.Ed. 885 (1935).
tion of the President was based on the
ground that the disclosures to the news me-
dia made the reasons for continuance of the
2. The cross-petition in No. 73-1834 raised
protective order no longer meaningful. On
the issue whether the grand jury acted with-
June 7, the District Court removed its pro-
in its authority in naming the President as a
tective order and, on June 10, counsel for
coconspirator. Since we find resolution of
both parties jointly moved this Court to un-
this issue unnecessary to resolution of the
seal those parts of the record which related
question whether the claim of privilege is
to the action of the grand jury regarding the
to prevail, the cross-petition for certiorari is
President. After receiving a statement in
dismissed as improvidently granted and the
opposition from the defendants, this Court
remainder of this opinion is concerned with
denied that motion on June 15, 1974 except
the issues raised in No. 73-1766. On June
for the grand jury's immediate finding relat-
19, 1974, the President's counsel moved for
ing to the status of the President as an un-
disclosure and transmittal to this Court of
indicted coconspirator. U.S. 94 S.Ct.
all evidence presented to the grand jury re-
40 L.Ed.2d - (1974).
lating to its action in naming the President
as an unindicted coconspirator. Action on
5. The specific meetings and conversations
FORD
this motion was deferred pending oral argu-
are enumerated in a schedule attached to the
ment of the case and is now denied.
subpoena 42a-46a of the App.
94 S.Ct.-1941/2
GER
3098
94 SUPREME COURT REPORTER
hearing,⁶ further motions to expunge the
rant judicial examination in chambers
for considera
grand jury's action naming the Presi-
"
-
F.Supp.,
at
-
The
order was fir
dent as an unindicted coconspirator and
court held, finally, that the Special Pros-
28 U.S.C. § 21
for protective orders against the disclo-
ecutor had satisfied the requirements of
sure of that information were filed or
Rule 17(c). The District Court stayed
[3,4] The
raised orally by counsel for the Presi-
its order pending appellate review on
U.S.C. § 129
dent.
condition that review was sought before
gressional po
4 p. m., May 24. The court further pro-
views, and ag
On May 20, 1974, the District Court
vided that matters filed under seal re-
ing an ongoi
denied the motion to quash and the mo-
main under seal when transmitted as
interlocutory
tions to expunge and for protective or-
part of the record.
dick V. Unit
ders. - F.Supp. - (1974). It fur-
On May 24, 1974, the President filed a
324-326, 60 S
ther ordered "the President or any sub-
ordinate officer, official, or employee
timely notice of appeal from the District
783 (1940).
Court order, and the certified record
ly promotes j
with custody or control of the documents
tens the ultin
or objects subpoenaed," id., at - to de-
from the District Court was docketed in
the United States Court of Appeals for
tion. In app
liver to the District Court, on or before
May 31, 1974, the originals -of all sub-
the District of Columbia Circuit. On
order denying
poenaed items, as well as an index and
the same day, the President also filed a
quiring the p
suant to a sul
analysis of those items, together with
petition for writ of mandamus in the
Court of Appeals seeking review of the
been repeated
tape copies of those portions of the sub-
District Court order.
not final ar
poenaed recordings for which tran-
United State
scripts had been released to the public
Later on May 24, the Special Prosecu-
532, 91 S.Ct.
by the President on April 30. The Dis-
tor also filed, in this Court, a petition
(1971) Cob
trict Court rejected jurisdictional chal-
for a writ of certiorari before judgment.
309 U.S. 323,
lenges based on a contention that the
On May 31, the petition was granted
(1940) Alex
dispute was nonjusticiable because it
with an expedited briefing schedule, -
U.S. 117, 26
was between the Special Prosecutor and
U.S. 94 S.Ct. 2637, 40 L.Ed.2d -
(1906). This
the Chief Executive and hence "intra-ex-
(1974). On June 6, the President filed,
ecutive" in character; it also rejected
under seal, a cross-petition for writ of
"consistentl
the contention that the judiciary was
certiorari before judgment. This cross-
for expedit
without authority to review an assertion
petition was granted June 15, 1974, —
of the crim
of executive privilege by the President.
U.S. 94 S.Ct. -, 40 L.Ed.2d -
one who see
The court's rejection of the first chal-
(1974), and the case was set for argu-
of desired i
lenge was based on the authority and
ment on July 8, 1974.
tween comp
powers vested in the Special Prosecutor
order to pr
by the regulation promulgated by the
I
of that ord
Attorney General; the court concluded
JURISDICTION
order with
that a justiciable controversy was pre-
of an adjud
sented. The second challenge was held to
The threshold question presented is
claims are 1
be foreclosed by the decision in Nixon v.
whether the May 20, 1974, order of the
ed States V
Sirica, 159 U.S.App.D.C. 58, 487 F.2d
District Court was an appealable order
91 S.Ct. 18
700 (1973).
and whether this case was properly "in,"
(1971).
28 U.S.C. § 1254, the United States
The District Court held that the judi-
Court of Appeals when the petition for
The require
ciary, not the President, was the final
certiorari was filed in this Court.
tempt, howeve
arbiter of a claim of executive privilege.
Court of Appeals jurisdiction under 28
and in some i
The court concluded that under the cir-
U.S.C. § 1291 encompasses only "final
derlying the 1
cumstances of this case the presumptive
decisions of the district courts." Since
ferent result.
privilege was overcome by the Special
the appeal was timely filed and all other
V. United Sta
Prosecutor's prima facie "demonstration
procedural requirements were met, the
417, 62 L.Ed
of need sufficiently compelling to war-
petition is properly before this Court
7. The parties
6. At the joint suggestion of the Special
fendants, further proceedings in the District
Court were held in camera.
LIBRAR
jurisdiction or
our conclusion
Prosecutor and counsel for the President,
der 2S U.S.C.
and with the approval of counsel for the de-
UNITED STATES V. NIXON
3099
Cite as 94 S.Ct. 3090 (1974)-
for consideration if the District Court had been directed to a third party re-
order was final. 28 U.S.C. § 1254(1)
questing certain exhibits; the appellant,
28 U.S.C. § 2101(e).
who owned the exhibits, sought to raise
[3, 4] The finality requirement of 28
a claim of privilege. The Court held an
U.S.C. § 1291 embodies a strong con-
order compelling production was appeal-
able because it was unlikely that the
gressional policy against piecemeal re-
views, and against obstructing or imped-
third party would risk a contempt cita-
tion in order to allow immediate review
ing an ongoing judicial proceeding by
of the appellant's claim of privilege.
interlocutory appeals. See, e. g., Cobble-
Id., at 12-13, 38 S.Ct. at 419-420. That
dick V. United States, 309 U.S. 323,
case fell within the "limited class of cas-
324-326, 60 S.Ct. 540, 541-542, 84 L.Ed.
es where denial of immediate. review
783 (1940). This requirement ordinari-
would render impossible any review
ly promotes judicial efficiency and has-
whatsoever of an individual's claims."
tens the ultimate termination of litiga-
United States v. Ryan, supra, 402 U.S.,
tion. In applying this principle to an
at 533, 91 S.Ct., at 1582.
order denying a motion to quash and re-
quiring the production of evidence pur-
[5, 6] Here too the traditional con-
suant to a subpoena duces tecum, it has
tempt avenue to immediate appeaLis pe-
been repeatedly held that the order is
culiarly inappropriate due to the unique
not final and hence not appealable.
setting in which the question arises. To
United States V Ryan, 402 U.S. 530,
require a President of the United States
532, 91 S.Ct. 1580, 1581, 29 L.Ed.2d 85
to, place himself in the posture of diso-
(1971) Cobbledick v. United States,
beying an order of a court merely to
309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783
trigger the procedural mechanism for
(1940) Alexander V. United States, 201
review of the ruling would be unseem-
U.S. 117, 26 S.Ct. 356, 50 L.Ed. 686
ly, and present an unnecessary occa-
(1906). This Court has
sion for constitutional confrontation be-
tween two branches of the Government.
"consistently held that the necessity
for expedition in the administration
Similarly, a federal judge should not be
of the criminal law justifies putting
placed in the posture of issuing a cita-
one who seeks to resist the production
tion to a President simply in order to
invoke review. The issue whether a
of desired information to a choice be-
tween compliance with a trial court's
President can be cited for contempt
order to produce prior to any review
could itself engender protracted litiga-
of that order, and resistance to that
tion, and would further delay both re-
order with the concomitant possibility
view on the merits of his claim of privi-
lege and the ultimate termination of the
of an adjudication of contempt if his
underlying criminal action for which his
claims are rejected on appeal." Unit-
evidence is sought. These considera-
ed States V. Ryan, 402 U.S. 530, 533,
tions lead us to conclude that the order
91 S.Ct. 1580, 1582, 29 L.Ed.2d 85
(1971).
of the District Court was an appealable
order. The appeal from that order was
The requirement of submitting to con-
therefore properly "in" the Court of Ap-
tempt, however, is not without exception
peals, and the case is now properly be-
and in some instances the purposes un-
fore this Court on the writ of certiorari
derlying the finality rule require a dif-
before judgment. 28 U.S.C. § 1254; 28
ferent result. For example, in Perlman
U.S.C. § 2101(e). Gay V. Ruff, 292 U.S.
V. United States, 247 U.S. 7, 38 S.Ct.
25, 30, 54 S.Ct. 608, 610, 78 L.Ed. 1099
417, 62 L.Ed. 950 (1918), a subpoena
(1934).7
FORD
7. The parties have suggested this Court has
Court's order was appealable, we need not
jurisdiction on other grounds. In view of
our conclusion that there is jurisdiction un-
decide whether other jurisdictional GREAT vehicles
are available.
der 28 U.S.C. § 1254(1) because the District
3100
94 SUPREME COURT REPORTER
II
[8, 9] The mere assertion of a claim
cial Prosecutor
of an "intra-branch dispute," without
the invocation
JUSTICIABILITY
more, has never operated to defeat fed-
the process of
eral jurisdiction; justiciability does not
relevant to th
[7] In the District Court, the Presi-
depend on such a surface inquiry. In
specially delega
dent's counsel argued that the court
United States v. ICC, 337 U.S. 426, 69
30739.
lacked jurisdiction to issue the subpoena
S.Ct. 1410, 93 L.Ed. 1451 (1949), the
[10] So lon
because the matter was an intra-branch
Court observed, "courts must look be-
tant it has the
dispute between a subordinate and supe-
hind names that symbolize the parties to
v. Shaughness
rior officer of the Executive Branch and
determine whether a justiciable case or
499, 98 L.Ed. 6
hence not subject to judicial resolution.
controversy is presented." Id., at 430,
the Attorney (
That argument has been renewed in this
69 S.Ct., at 1413. See also: Powell V.
of his discretio
Court with emphasis on the contention
McCormack, 395 U.S. 486, 89 S.Ct. 1944,
of Immigratio
that the dispute does not present a
23 L.Ed.2d 491 (1969) ICC V. Jersey
that Board to E
"case" or "controversy" which can be
City, 322 U.S. 503, 64 S.Ct. 1129, 88 L.
on appeals in
adjudicated in the federal courts. The
Ed. 1420 (1944) United States ex rel.
Court held tha
President's counsel argues that the fed-
Chapman v. FPC, 345 U.S. 153, 73 S.Ct.
eral courts should not intrude into areas
609, 97 L.Ed. 918 (1953) Secretary of
tions and litig
committed to the other branches of Gov-
Agriculture V. United States, 347 U.S.
arising out of
ernment. He views the present dispute
645, 74 S.Ct. 826, 98 L.Ed. 1015 (1954)
for which the
as essentially a "jurisdictional" dispute
FMB v. Isbrandsten Co., 356 U.S. 481,
necessary and
sibility, allegat
within the Executive Branch which he
482 n. 2, 78 S.Ct. 851, 853, 2 L.Ed.2d
members of the
analogizes to a dispute between two
926 (1958) ; United States v. Marine
idential appoin
congressional committees. Since the
Bancorporation Corp., - U.S. 94
which he conse
Executive Branch has exclusive au-
S.Ct. 2856, 40 L.Ed.2d - (1974), and
by the Attor
30739, as ame
thority and absolute discretion to de-
United States V. Connecticut National
In particular,
cide whether to prosecute a case, Con-
Bank, - U.S. 94 S.Ct. 2788, 40 L.
given full aut
fiscation Cases, 7 Wall. 454, 19 L.Ed.
Ed.2d - (1974).
the assertion
196 (1869), United States V. Cox, 342
and h
Our starting point is the nature of the
es within his j
F.2d 167, 171 (CA5), cert. denied, 381
proceeding for which the evidence is
lations then go
U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700
sought-here a pending criminal prose-
"In exercisir
(1965), it is contended that a Presi-
Prosecutor wil
cution. It is a judicial proceeding in a
dent's decision is final in determining
independence t
federal court alleging violation of fed-
what evidence is to be used in a given
torney-General
eral laws and is brought in the name of
all matters fal
criminal case. Although his counsel
the United States as sovereign. Verger
the Department
concedes the President has delegated
V. United States, 295 U.S. 78, 88, 55 S.
General will
certain specific powers to the Special
with the Spe
Ct. 629, 633, 79 L.Ed. 1314 (1935). Un-
Prosecutor, he has not "waived nor dele-
actions. The
der the authority of Art. II, § 2, Con-
mine whether
gated to the Special Prosecutor the
gress has vested in the Attorney General
form or consu
President's duty to claim privilege as to
the power to conduct the criminal litiga-
about the cond
all materials
which fall with-
bilities. In a
tion of the United States Government.
in the President's inherent authority to
en by the Pre
28 U.S.C. § 516. It has also vested in him
that the Presi
refuse to disclose to any executive offi-
the power to appoint subordinate offi-
stitutional poy
cer." Brief for the President 47. The
cers to assist him in the discharge of his
the Special P
Special Prosecutor's demand for the
duties. 28 U.S.C. §§ 509, 510, 515, 533.
pendence he
items therefore presents, in the view of
Prosecutor wil
Acting pursuant to those statutes, the
ties except for
the President's counsel, a political ques-
Attorney General has delegated the au-
on his part ai
tion under Baker v. Carr, 369 U.S. 186,
thority to represent the United States in
consulting the
82 S.Ct. 691, 7 L.Ed.2d 663 (1962), since
these particular matters to a Special
ers and Cha
FOR
Members of tl
it involves a "textually demonstrable"
Prosecutor with unique authority and
Senate and I
grant of power under Art. II.
tenure.⁸ The regulation gives the Spe-
ascertaining t
cord with his 1
8. The regulation issued by the Attorney Gen-
vests in the Special Prosecutor plenary au-
eral pursuant to his statutory authority,
thority to control the course of investiga-
UNITED STATES V. NIXON
3101
Cite as 94 S.Ct. 3090 (1974)
cial Prosecutor explicit power to contest
General's regulations remained opera-
the invocation of executive privilege in
tive, he denied himself the authority to
the process of seeking evidence deemed
exercise the discretion delegated to the
relevant to the performance of these
Board even though the original authority
specially delegated duties.9 38 Fed.Reg.
was his and he could reassert it by
30739.
amending the regulations. Service v.
Dulles, 354 U.S. 363, 388, 77 S.Ct. 1152,
[10] So long as this regulation is ex-
1165, 1 L.Ed.2d 1403 (1957), and Vitar-
tant it has the force of law. In Accardi
elli V. Seaton, 359 U.S. 535, 79 S.Ct. 968,
V. Shaughnessy, 347 U.S. 260, 74 S.Ct.
3 L.Ed.2d 1012 (1959), reaffirmed the
499, 98 L.Ed. 681 (1953), regulations of
basic holding of Accardi.
the Attorney General delegated certain
of his discretionary powers to the Board
Here, as in Accardi, it is theoretically
of Immigration Appeals and required
possible for the Attorney General to
that Board to exercise its own discretion
amend or revoke the regulation defining
on appeals in deportation cases. The
the Special Prosecutor's authority. But
Court held that so long as the Attorney
he has not done so.¹⁰ So long as this
tions and litigation related to "all offenses
9. That this was the understanding of Acting
arising out of the 1972 Presidential Election
Attorney General Robert Bork, the author
for which the Special Prosecutor deems it
of the regulation establishing the independ-
necessary and appropriate to assume respon-
ence of the Special Prosecutor, is shown by
sibility, allegations involving the President,
his testimony before the Senate Judiciary
members of the White House staff, or Pres-
Committee:
idential appointees, and any other matters
"Although it is anticipated that Mr. Jaworski
which he consents to have assigned to him
will receive cooperation from the White
by the Attorney General." 38 Fed.Reg.
House in getting any evidence he feels he
30739, as amended by 38 Fed.Reg. 32805.
needs to conduct investigations and prosecu-
In particular, the Special Prosecutor was
tions, it is clear and understood on all sides
given full authority, inter alia, "to contest
that he has the power to use judicial pro-
the assertion of 'Executive Privilege'
cesses to pursue evidence if disagreement
and handl[e] all aspects of any cas-
should develop."
es within his jurisdiction." Ibid. The regu-
Hearings before the Senate Judiciary Com-
lations then go on to provide:
mittee on the Special Prosecutor, 93d Cong.,
"In exercising this authority, the Special
1st Sess., pt. 2, at 470 (1973). Acting At-
Prosecutor will have the greatest degree of
torney General Bork gave similar assurances
independence that is consistent with the At-
to the House Subcommittee on Criminal Jus.
torney-General's statutory accountability for
tice. Hearings before the House Judiciary
all matters falling within the jurisdiction of
Subcommittee on Criminal Justice on H.J.
the Department of Justice. The Attorney
Res. 784 and H.R. 10937, 93d Cong., 1st
General will not countermand or interfere
Sess. 266 (1973). At his confirmation hear-
with the Special Prosecutor's decisions or
ings, Attorney General William Saxbe testi-
actions. The Special Prosecutor will deter-
fied that he shared Acting Attorney General
mine whether and to what extent he will in-
Bork's views concerning the Special Prose-
form or consult with the Attorney General
cutor's authority to test any claim of execu-
about the conduct of his duties and responsi-
tive privilege in the courts. Hearings before
bilities. In accordance with assurances giv-
the Senate Judiciary Committee on the nom-
en by the President to the Attorney General
ination of William B. Saxbe to be Attorney
that the President will not exercise his Con-
General, 93d Cong., 1st Sess. 9 (1973).
stitutional powers to effect the discharge of
the Special Prosecutor or to limit the inde-
10. At his confirmation hearings Attorney
pendence he is hereby given, the Special
General William Saxbe testified that he
Prosecutor will not be removed from his du-
agreed with the regulation adopted by Act-
ties except for extraordinary improprieties
ing Attorney General Bork and would not
on his part and- without the President's first
remove the Special Prosecutor except for
consulting the Majority and Minority Lead-
"gross impropriety." Hearings, Senate Judi-
ers and Chairman and ranking Minority
ciary Committee on the nomination of Wil-
Members of the Judiciary Committees of the
liam B. Saxbe to be Attorney General, 93d
Senate and House of Representatives and
Cong., 1st Sess., 5-6, 8-10 (1973). There is
ascertaining that their consensus is in ac-
no contention here that the Special
cord with his proposed action."
tor is guilty of any such impropriety.
arvano
LIBRAL
3102
94 SUPREME COURT REPORTER
regulation remains in force the Execu-
it is within the traditional scope-of Art.
portions the
tive Branch is bound by it, and indeed
III power. Id., at 198, 82 S.Ct. 691.
parties and t
the United States as the sovereign com-
[12, 13] In light of the uniqueness
A subpoena
posed of the three branches is bound to
of the setting in which the conflict
quashed if th
respect and to enforce it. Moreover, the
delegation of authority to the Special
arises, the fact that both parties are of-
"unreasonable
ficers of the Executive Branch cannot be
otherwise. T
Prosecutor in this case is not an ordi-
viewed as a barrier to justiciability. It
Court interpret
nary delegation by the Attorney General
would be inconsistent with the applicable
man Dairy Co.
to a subordinate officer: with the au-
law and regulation, and the unique facts
S. 214, 71 S
thorization of the President, the Acting
of this case to conclude other than that
(1950). This
Attorney General provided in the regula-
the Special Prosecutor has standing to
fundamental cl
tion that the Special Prosecutor was, not
to be removed without the "consensus"
bring this action and that a justiciable
poena duces t
(1) it was no
of eight designated leaders of Congress.
controversy is presented for decision.
means of disc
Note 8, supra.
III
Id., at 220, 71
innovation was
[11] The demands of and the resist-
Rule 17(c)
providing a ti
ance to the subpoena present an obvious
The subpoena duces tecum is chal-
for the inspect
controversy in the ordinary sense, but
lenged on the ground that the Special
rials.¹¹ Ibid.
that alone is not sufficient to meet con-
Prosecutor failed to satisfy the require-
cases decided
stitutional standards. In the constitu-
ments of Fed.Rule Crim.Proc. 17(c),
have generally
tional sense, controversy means more
which governs the issuance of subpoenas
formulation in
than disagreement and conflict; rather
duces tecum in federal criminal proceed-
F.R.D. 335, 338
it means the kind of controversy courts
ings. If we sustained this challenge,
required showi
traditionally resolve. Here at issue is
there would be no occasion to reach the
order to require
the production or nonproduction of speci-
claim of privilege asserted with respect
the moving par
fied evidence deemed by the Special
to the subpoenaed material. Thus we
the documents
Prosecutor to be relevant and admissible
turn to the question whether the require-
evant; (2) tha
in a pending criminal case. It is sought
ments of Rule 17(c) have been satisfied.
procurable reas
by one official of the Government within
See Arkansas-Louisiana Gas Co. v. Dept.
by exercise of
the scope of his express authority; it is
of Public Utilities, 304 U.S. 61, 64, 58
the party cani
resisted by the Chief Executive on the
S.Ct. 770, 771, 82 L.Ed. 1149 (1938)
trial without
ground of his duty to preserve the confi-
Ashwander V. Tennessee Valley Author-
inspection in a
dentiality of the communications of the
ity, 297 U.S. 288, 346-347, 56 S.Ct. 466,
-the failure to
President. Whatever the correct answer
482-483, 80 L.Ed. 688 (1936). (Bran-
may tend uni
on the merits, these issues are "of a
deis, J., concurring.)
trial; (4) that
type which are traditionally justiciable."
United States V. ICC, 337 U.S., at 430,
[14-17] Rule 17(c) provides:
11. The Court q
69 S.Ct., at 1413. The independent Spe-
"A subpoena may also command the
ber of the advi
cial Prosecutor with his asserted need
person to whom it is directed to pro-
pose of the R
for the subpoenaed material in the un-
into court "in s
duce the books, papers, documents or
are offered in
derlying criminal prosecution is opposed
other objects designated therein. The
then be inspect
by the President with his steadfast as-
court on motion made promptly may
pose
sertion of privilege against disclosure of
quash or modify the supoena if com-
whether he can
the material. This setting assures there
pliance would be unreasonable or op-
wants to use [
5, 71 S.Ct. at
is "that concrete adverseness which
pressive. The court may direct that
plex and Multi
sharpens the presentation of issues upon
books, papers, documents or objects
by the Adminis
which the court so largely depends for
designated in the subpoena be pro-
States Courts
illumination of difficult constitutional
duced before the court at a time prior
be encouraged
order that each
questions". Baker V. Carr, 369 U.S., at
to the trial or prior to the time when
produce its docu
204, 82 S.Ct., at 703. Moreover, since
they are to be offered in evidence and
vance of trial D
the matter is one arising in the regular
may upon their production permit the
course of a federal criminal prosecution,
books, papers, documents or objects or
LIBRAR
is to be offered.
UNITED STATES V. NIXON
3103
Cite as 94 S.Ct. 3090 (1974)
portions thereof to be inspected by the in good faith and is not. intended as a
parties and their attorneys."
general "fishing expedition."
A subpoena for documents may be
quashed if their production would be
[18] Against this background, the
"unreasonable or oppressive," but not
Special Prosecutor, in order to carry his
otherwise. The leading case in this
burden, must clear three hurdles: (1)
Court interpreting this standard is Bow-
relevancy; (2) admissibility; (3) speci-
man Dairy Co. v. United States, 341 U.
ficity. Our own review of the record
S. 214, 71 S.Ct. 675, 95 L.Ed. 879
necessarily affords a less comprehensive
(1950). This case recognized certain
view of the total situation than was
fundamental characteristics of the sub-
available to the trial judge and we are
poena duces tecum in criminal cases:
unwilling to conclude that the District
(1) it was not intended to provide: a
Court erred in the evaluation of the Spe-
means of discovery for criminal cases.
cial Prosecutor's showing under Rule
Id., at 220, 71 S.Ct. 675; (2) its chief
17(c). Our conclusion is based on the
innovation was to expedite the trial by
record before us, much of which is un-
providing a time and place before trial
der seal. Of course, the contents of the
for the inspection of subpoenaed mate-
subpoenaed tapes could not at that stage
rials.¹¹ Ibid. As both parties agree,
be described fully by the Special Prose-
cases decided in the wake of Bowman
cutor, but there was a sufficient likeli-
have generally followed Judge Weinfeld's
hood that each of the tapes contains con-
formulation in United States V. Iozia, 13
versations relevant to the offenses
F.R.D. 335, 338 (SDNY 1952), as to the
charged in the indictment. United
required showing. Under this test, in
States V. Gross, 24 F.R.D. 138 (SDNY
order to require production prior to trial,
1959). With respect to many of the
the moving party must show: (1) that
tapes, the Special Prosecutor offered the
the documents are evidentiary 12 and rel-
sworn testimony or statements of one or
evant; (2) that they are not otherwise
more of the participants in the conversa-
procurable reasonably in advance of trial
tions as to what was said at the time.
by exercise of due diligence; (3) that
As for the remainder of the tapes, the
the party cannot properly prepare for
identity of the participants and the time
trial without such production and
and place of the conversations, taken in
inspection in advance of trial and that
their total context, permit a rational in-
the failure to obtain such inspection
ference that at least part of the conver-
may tend unreasonably to delay the
sations relate to the offenses charged in
trial; (4) that the application is made
the indictment.
11. The Court quoted a statement of a mem-
12. The District Court found here that it was
ber of the advisory committee that the pur-
faced with "the more unusual situation.
pose of the Rule was to bring documents
where the subpoena, rather than
into court "in advance of the time that they
being directed to the government by the de-
are offered in evidence, so that they may
fendants, issues to what, as a practical mat-
then be inspected in advance, for the pur-
ter, is a third party." United States V.
pose
of enabling the party to see
Mitchell, - F.Supp. — (D.C.1974). The
whether he can use [them] or whether he
Special Prosecutor suggests that the eviden-
wants to use [them]." 341 U.S., at 220 n.
tiary requirement of Bowman Dairy Co. and
5, 71 S.Ct. at 678. The Manual for Com-
Iozia does not apply in its full vigor when
plex and Multi-district Litigation published
the subpoena duces tecum is issued to third
by the Administrative Office of the United
parties rather than to government prosecu-
States Courts recommends that Rule 17(c)
tors. Brief for the United States 128-129.
be encouraged in complex criminal cases in
We need not decide whether a lower stand-
order that each party may be compelled to
ard exists because we are satisfied that the
produce its documentary evidence well in ad-
relevance and evidentiary nature of the sub-
vance of trial and in advance of the time it
poenaed tapes were sufficiently sl:own as
a
is to be offered. P. 142, CCH Ed.
preliminary matter to warrant the District
FORD
Court's refusal to quash the subpoena.
LIBRAR
3104
94 SUPREME COURT REPORTER
[19-26] We also conclude there was
trial. See, e. g., United States V. Carter,
of his motion fo
a sufficient preliminary showing that
15 F.R.D. 367, 371 (D.D.C.1954). Here,
persuaded that th
each of the subpoenaed tapes contains
however, there are other valid potential
al of the Preside
evidence admissible with respect to the
evidentiary uses for the same material
subpoena was
offenses charged in the indictment. The
and the analysis and possible transcrip-
17(c). We also
most cogent objection to the admissibil-
tion of the tapes may take a significant
cial Prosecutor
ity of the taped conversations here at
period of time. Accordingly, we cannot
showing to justi
issue is that they are a collection of
say that the District Court erred in au-
duction before
out-of-court statements by declarants
thorizing the issuance of the subpoena
materials are n
who will not be subject to cross-examin-
duces tecum.
other source, and
ation and that the statements are there-
[27, 28] Enforcement of a pretrial
processing shoul
fore inadmissible hearsay. Here, how-
subpoena duces tecum must necessarily
circumstances s)
ever, most of the tapes apparently con-
be committed to the sound discretion of
Co., supra; Uni
tain conversations to which one or more
the trial court since the necessity for
pra.
of the defendants named in the indict-
the subpoena most often turns upon a
ment were party. The hearsay rule
determination of factual issues. With-
does not automatically bar all out-of-
out a determination of arbitrariness or
court statements by a defendant in a
THE CLAI
that the trial court finding was without
criminal case.¹³ Declarations by one
record support, an appellate court will
defendant may also be admissible
not ordinarily disturb a finding that the
against other defendants upon a suf-
applicant for a subpoena complied with
Having deterr
ficient showing, by independent evi-
ments of Rule 1
Rule 17(c). See, e. g., Sue V. Chicago
dence,14 of a conspiracy among one
turn to the cla
Transit Authority, 279 F.2d 416, 419
or more other defendants and the de-
(CA7 1960); Shotkin V. Nelson, 146
should be quash
larant and if the declarations at issue
"confidential co
F.2d 402 (CA10 1944).
were in furtherance of that con-
President and h
spiracy. The same is true of declara-
would be inconsi
tions of coconspirators who are not de-
[29] In a case such as this, however,
terest to produce
fendants in the case on trial. Dutton Vo
where a subpoena is directed to a Presi-
contention is a b
Evans, 400 U.S. 74, 81, 91 S.Ct. 210, 215,
dent of the United States, appellate re-
aration of power
view, in deference to a coordinate
27 L.Ed.2d 213 (1970). Recorded con-
dicial review of
versations may also be admissible for
branch of government, should be partic-
privilege. The :
ularly meticulous to ensure- that the
the limited purpose of impeaching the
if he does not pr
standards of Rule 17(c) have been cor-
credibility of any defendant who testi-
solute privilege,
rectly applied. United States v. Burr,
fies or any other coconspirator who tes-
a matter of con
25 Fed.Cas. pp. 30, 34 (No.14,692d)
tifies. Generally, the need for evidence
privilege preva
(1807). From our examination of the
duces tecum.
to impeach witnesses is insufficient to
materials submitted by the Special Pros-
require its production in advance of
ecutor to the District Court in support
[30, 31] In 1
signed constitut
13. Such statements are declarations by a
F.2d 320, 323 (CA 4 1973) United States
of the Governm
party defendant that "would surmount all
V. Hoffa, 349 F.2d 20, 41-42 (CA 6 1965),
objections based on the hearsay rule
aff'd on other grounds, 385 U.S. 293, 87 S.
pret the Constit
and, at least as to the declarant
Ct. 408, 17 L.Ed.2d 374 (1966) ; United
tation of its po
himself "would be admissible for whatever
States V. Santos, 385 F.2d 43, 45 (CA 7
due great respection
inferences" might be reasonably drawn.
1967), cert. denied, 390 U.S. 954, 88 S.Ct.
President's cour
United States V. Matlock, - U.S. -, 94
1048, 19 L.Ed.2d 1148 (1968). United
S.Ct. 988, 39 L.Ed.2d 242 (1974). On Lee
reads the Const
States V. Morton, 483 F.2d 573, 576 (CA 8
V. United States, 343 U.S. 747, 757, 72 S.Ct.
1973) United States V. Spanos, 462 F.2d
absolute privile,
967, 973, 96 L.Ed. 1270-(1953). See also
1012, 1014 (CA 9 1972); Carbo V. United
all presidential
McCormick on Evidence, § 270, at 651-
States, 314 F.2d 718, 737 (CA 9 1963), cert.
decisions of th
652 (1972 ed).
denied, 377 U.S. 953, 84 S.Ct. 1625, 12 L.
unequivocally re
Ed.2d 498 (1964). Whether the standard
14. As a preliminary matter, there must be
has been satisfied is a question of admissi-
FORD
Marbury V. Ma
substantial, independent evidence of the con-
bility of evidence to be decided by the trial
L.Ed. 60 (1803)
spiracy, at least enough to take the question
judge.
to the jury. United States V. Vaught, 485
BER
LIBRAR
the province and
94 S.Ct.-195
UNITED STATES V. NIXON
3105
Cite as 94 S.Ct. 3090 (1974)
of his motion for the subpoena, we are
partment to say what the law is." Id.,
persuaded that the District Court's deni-
at 177, 2 L.Ed. 60.
al of the President's motion to quash the
subpoena was consistent with Rule
[32] No holding of the Court has de-
17(c). We also conclude that the Spe-
fined the scope of judicial power specifi-
cial Prosecutor has made a sufficient
cally relating to the enforcement of a
showing to justify a subpoena for pro-
subpoena for confidential presidential
communications for use in a criminal
duction before trial. The subpoenaed
materials are not available from any
prosecution, but other exercises of pow-
ers by the Executive Branch and the
other source, and-their examination and
Legislative Branch have been found in-
processing should not await trial in the
valid as in conflict with the Constitu-
circumstances shown. Bowman Dairy
Co., supra; United States v. Iozia, su-
tion. Powell v. McCormack, supra;
Youngstown, supra. In a series of cas-
pra.
es, the Court interpreted the explicit im-
munity conferred by express provisions
IV
of the Constitution on Members of the
THE CLAIM OF PRIVILEGE
House and Senate by the Speech or De-
bate Clause, U.S.Const. Art. I, § 6. Doe
A
V. McMillan, 412 U.S. 306, 93 S.Ct. 2018,
Having determined that the require-
36 L.Ed.2d 912 (1973) Gravel V. Unit-
ments of Rule 17(c) were satisfied, we
ed States, 408 U.S. 606, 92 S.Ct. 2614, 33
turn to the claim that the subpoena
L.Ed.2d 583 (1973) United States V.
should be quashed because it demands
Brewster, 408 U.S. 501, 92 S.Ct. 2531, 33
"confidential conversations between a
L.Ed.2d 507 (1972) United States v.
President and his close advisors that it
Johnson, 383 U.S. 169, 86 S.Ct. 749, 15
would be inconsistent with the public in-
L.Ed.2d 681 (1966). Since this Court
terest to produce." App. 48a. The first
has consistently exercised the power to
contention is a broad claim that the sep-
construe and delineate claims arising un-
aration of powers doctrine precludes ju-
der express powers, it must follow that
dicial review of a President's claim of
the Court has authority to interpret
privilege. The second contention is that
claims with respect to powers alleged to
if he does not prevail on the claim of ab-
derive from enumerated powers.
solute privilege, the court should hold as
[33, 34] Our system of government
a matter of constitutional law that the
"requires that federal courts on occasion
privilege prevails over the subpoena
interpret the Constitution in a manner
duces tecum.
at variance with the construction given
[30, 31] In the performance of as-
the document by another branch." Pow-
signed constitutional duties each branch
ell v. McCormack, supra, 395 U.S., at
of the Government must initially inter-
549, 89 S.Ct., at 1978. And in Baker v.
pret the Constitution, and the interpre-
Carr, 369 U.S., at 211, 82 S.Ct., at 706,
tation of its powers by any branch is
the Court stated:
due great respect from the others. The
"[D]eciding whether a matter has
President's counsel, as we have noted,
in any measure been committed by the
reads the Constitution as providing an
Constitution to another branch of gov-
absolute privilege of confidentiality for
ernment, or whether the action of
all presidential communications. Many
that branch exceeds whatever authori-
decisions of this Court, however, have
ty has been committed, is itself a deli-
unequivocally reaffirmed the holding of
cate exercise in constitutional inter-
Marbury V. Madison, 1 Cranch. 137, 2
pretation, and is a responsibility of
L.Ed. 60 (1803), that "it is emphatically
this Court as ultimate interpreter of
the province and duty of the judicial de-
the Constitution."
94 S.Ct.-195
FORD B. LIBRA,
3106
94- SUPREME COURT REPORTER
Notwithstanding the deference each
temper candor with a concern for ap-
jectivity from
branch must accord the others, the
pearances and for their own interests to
deference from
"judicial power of the United States"
the detriment of the decisionmaking
when the privi
vested in the federal courts by Art. III,
process. 15 Whatever the nature of the
broad, undiffe
§ 1 of the Constitution can no more be
privilege of confidentiality of presiden-
interest in th
shared with the Executive Branch than
tial communications in the exercise of
conversations,
the Chief Executive, for example, can
Art. II powers the privilege can be said
er values arise
share with the Judiciary the veto power,
to derive from the supremacy of each
to protect mili
or the Congress share with the Judici-
branch within its own assigned area of
tive national S
ary the power to override a presidential
constitutional duties. Certain powers
difficult to a
veto. Any other conclusion would be
and privileges flow from the nature of
even the very
contrary to the basic concept of separa-
enumerated powers;¹ the protection of
fidentiality of
tion of powers and the checks and bal-
the confidentiality of presidential com-
tions is signifi
ances that flow from the scheme of a
munications has similar constitutional
duction of suc
tripartite government. The Federalist,
underpinnings.
inspection with
No. 47, p. 313 (C. F. Mittel ed. 1938).
district court
The second ground asserted by the
We therefore reaffirm that it is "em-
President's counsel in support of the
The impedin
phatically the province and the duty"
claim of absolute privilege rests on the
qualified priv
this Court "to say what the law is" with
doctrine of separation of powers. Here
way of the pr
respect to the claim of privilege present-
it is argued that the independence of the
of the Judicia
ed in this case. Marbury v. Madison,
Executive Branch within its own sphere,
criminal prose
supra, 1 Cranch. at 177, 2 L.Ed. 60.
Humphrey's Executor V. United States,
flict with the
295 U.S. 602, 629-630, 55 S.Ct. 869,
der Art. III.
B
874-875, "79 L.Ed. 1611; Kilbourn V.
of our Govern
[35] In support of his claim of abso-
Thompson, 103 U.S. 168, 190-191, 26 L.
locating the
lute privilege, the President's counsel
Ed. 377 (1880), insulates a president
three coequal
urges two grounds one of which is com-
from a judicial subpoena in an ongoing
the Constituti
mon to all governments and one of
criminal prosecution, and thereby pro-
comprehensive
which is peculiar to our system of sepa-
tects confidential presidential communi-
powers were
ration of powers. The first ground is
cations.
with absolute
the valid need for protection of commu-
"While the (
nications between high government offi-
[36] However, neither the doctrine
er the bette:
cials and those who advise and assist
of separation of powers, nor the need
contemplates
them in the performance of their mani-
for confidentiality of high level commu-
grate the -
fold duties; the importance of this con-
nications, without more, can sustain an
workable g
fidentiality is too plain to require fur-
absolute, unqualified presidential privi-
upon its bra
ther discussion. Human experience
lege of immunity from judicial process
terdependen
teaches that those who expect public dis-
under all circumstances. The Presi-
ity." Young
semination of their remarks may well
dent's need for complete candor and ob-
V. Sawyer, 3
863, 870, 96
15. There is nothing novel about governmental
16. The Special Prosecutor argues that there is
confidentiality. The meetings of the Consti-
no provision in the Constitution for a presi-
son, J., conct
tutional Convention in 1787 were conducted
dential privilege as to the President's commu-
To read the A:
in complete privacy. 1 Farrand, The
nications corresponding to the privilege of
Records of the Federal Convention of 1787,
dent as provid
Members of Congress under the Speech or De-
xi-xxv (1911). Moreover, all records of
bate Clause. But the silence of the Consti-
as against a
those meetings were sealed for more than 30
tution on this score is not dispositive. "The
forcement of
years after the Convention. See 3 U.S.Stat.
rule of constitutional interpretation an-
At Large, p. 475, 15th Cong. 1st Sess., Res.
nounced in McCulloch V. Maryland, 4 Wheat.
17. "Freedom o
8 (1818). Most of the Framers acknowl-
316, 4 L.Ed. 579, that that which was rea-
fillment of the
edged that without secrecy no constitution of
sonably appropriate and relevant to the ex-
ships is obtain
the kind that was developed could have been
ercise of a granted power was to be consid-
ter of compelle
written. Warren, The Making of the Con-
ered as accompanying the grant, has been so
ernment
stitution, 134-139 (1937).
universally applied that it suffices merelyjto
channels for t
state it." Marshall V. Gordon, 243 U.S. 521,
essential to th
537, 37 S.Ct. 448, 451, 61 L.Ed. 881 (1917).
Carl Zeiss Sti
LIBRAR
UNITED STATES V. NIXON
3107
Cite as 94 S.Ct. 3090 (1974)
jectivity from advisers calls for great more than a generalized claim of the
deference from the courts. However,
public interest in confidentiality of non-
when the privilege depends solely on the
military and nondiplomatic discussions
broad, undifferentiated claim of public
would upset the constitutional balance of
interest in the confidentiality of such
"a workable government" and gravely
conversations, a confrontation with oth-
impair the role of the courts under Art.
er values arises. Absent a claim of need
III. -
to protect military, diplomatic or sensi-
tive national security secrets, we find it
C
difficult to accept the argument that
[37, Since we conclude that the
even the very important interest in con-
legitimate needs of the judicial process
fidentiality of presidential communica-
may outweigh presidential privilege, it
tions is significantly diminished by pro-
is necessary to resolve those competing
duction of such material for in camera
interests in a manner that preserves the
inspection with all the protection that a
essential functions of each branch. The
district court will be obliged to provide.
right and indeed the duty to resolve that
The impediment that an absolute, un-
question does not free the judiciary
qualified privilege would place in the
from according high respect to the rep-
way of the primary constitutional duty
resentations made on behalf of the Pres-
of the Judicial Branch to do justice in
ident. United States v. Burr, 25 Fed.
criminal prosecutions would plainly con-
Cas. pp. 187, 190, 191-192 (No. 14,694)
flict with the function of the courts un-
(1807).
der Art. III. In designing the structure
of our Government and dividing and al-
[39] The expectation of a President
locating the sovereign power among
to the confidentiality of his conversa-
three coequal branches, the Framers of
tions and correspondence, like the claim
the Constitution sought to provide a
of confidentiality of judicial delibera-
comprehensive system, but the separate
tions, for example, has all the values to
powers were not intended to operate
which we accord deference for the priva-
with absolute independence.
cy of all citizens and added to those val-
ues the necessity for protection of the
"While the Constitution diffuses pow-
public interest in candid, objective, and
er the better to secure liberty, it also
even blunt or harsh opinions in presi-
contemplates that practice will inte-
dential decisionmaking. A President
grate the dispersed powers into a
and those who assist him must be free
workable government. It enjoins
to explore alternatives in the process of
upon its branches separateness but in-
shaping policies and making decisions
terdependence, autonomy but reciproc-
and to do so in a way many would be
ity." Youngstown Sheet & Tube Co.
unwilling to express except privately.
V. Sawyer, 343 U.S. 579, 635, 72 S.Ct.
These are the considerations justifying
863, 870, 96 L.Ed. 1153 (1952) (Jack-
a presumptive privilege for presidential
son, J., concurring).
communications. The privilege is fun-
To read the Art. II powers of the Presi-
damental to the operation of govern-
dent as providing an absolute privilege
ment and inextricably rooted in the sep-
as against a subpoena essential to en-
aration of powers under the Con-
forcement of criminal statutes on no
stitution.¹ In Nixon V. Sirica, 159
17. "Freedom of communication vital to ful-
Jena, 40 F.R.D. 318, 325 (D.C.1966). See
fillment of the aims of wholesome relation-
Nixon v. Sirica, 159 U.S.App.D.C. 58, 71, 487
ships is obtained only by removing the spec-
F.2d 700, 713 (1973) ; Kaiser Aluminum &
ter of compelled disclosure
[G]ov-
Chem. Corp. v. United States, 157 F.Supp.
ernment
needs open but protected
939, 141 Ct.Cl. 38 (1958) (per Reed, J.)
channels for the kind of plain talk that is
The Federalist No. 64 (S. F. Mittel ed
essential to the quality of its functioning."
1938).
Carl Zeiss Stiftung .V. V. E. B. Carl Zeiss,
FORD 07583 LIBRA,
3108
94 SUPREME COURT REPORTER
U.S.App.D.C. 58, 487 F.2d 700 (1973),
'that the public
has a right
dealing with
the Court of Appeals held that such
to every man's evidence' except for
volving foreig
presidential communications are "pre-
those persons protected by a constitu-
the Court said
sumptively privileged," id., at 717, and
tional, common law, or statutory privi-
"The Presid
this position is accepted by both parties
lege, United States V. Bryan, 339 U.S.
in-Chief and
in the present litigation. We agree
[323], at 331 [70 S.Ct. 724, 94 L.Ed.
foreign affa
with Mr. Chief Justice Marshall's ob-
884] (1949); Blackmer V. United
gence servic
servation, therefore, that "in no case of
States, 284 U.S. 421, 438 [52 S.Ct.
and ought n
this kind would a court be required to
252, 76 L.Ed. 375].
Branz-
world. It 1
proceed against the President as against
burg V. [Hayes] United States, 408
courts, with
an ordinary individual." United States
U.S. 665, 688 [92 S.Ct. 2646, 33 L.Ed.
tion, should
V. Burr, 25 Fed.Cas. pp. 187, 192 (No.
2d 626] (1973).
fy actions o
14,694) (CCD Va.1807).
The privileges referred to by the Court
information
are designed to protect weighty and le-
Id., at 111, 6
[40-42] But this presumptive privi-
gitimate competing interests. Thus, the
In United Stat
lege must be considered in light of our
Fifth Amendment to the Constitution
historic commitment to the rule of law.
73 S.Ct. 528, 9
provides that no man "shall be com-
This is nowhere more profoundly mani-
ing with a cla
pelled in any criminal case to be a wit-
fest than in our view that "the twofold
dence in a dam
ness against himself." And, generally,
ernment the Co
aim [of criminal justice] is that guilt
an attorney or a priest may not be re-
shall not escape or innocence suffer."
"It may be
quired to disclose what has been re-
Berger V. United States, 295 U.S. 78, 88,
court, from
vealed in professional confidence. These
55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935).
the case, th
and other interests are recognized in law
We have elected to employ an adversary
danger that
by privileges against forced disclosure,
system of criminal justice in which the
dence will
established in the Constitution, by stat-
parties contest all issues before a court
which, in the
ute, or at common law. Whatever their
of law. The need to develop all relevant
rity, should
origins, these exceptions to the demand
facts in the adversary system is both
this is the k
for every man's evidence are not lightly
fundamental and comprehensive. The
privilege is
created nor expansively construed, for
ends of criminal justice would be defeat-
should not
they are in derogation of the search for
ed if judgments were to be founded on a
which the p
truth.18
partial or speculative presentation of the
tect by insis
facts. The very integrity of the judicial
[44] In this case the President chal-
of the evide
system and public confidence in the sys-
lenges a subpoena served on him as a
alone, in cha
tem depend on full disclosure of all the
third party requiring the production of
No case of the
facts, within the framework of the rules
materials for use in a criminal prosecu-
tended this hig
of evidence. To ensure that justice is
tion on the claim that he has a privilege
a President's g
done, it is imperative to the function of
against disclosure of confidential com-
fidentiality. I
courts that compulsory process be avail-
munications. He does not place his
able for the production of evidence need-
claim of privilege on the ground they
19. We are not
ed either by the prosecution or by the
are military or diplomatic secrets. As
ance between t
defense.
to these areas of Art. II duties the
terest in confid
evant evidence
courts have traditionally shown the ut-
that between tl
[43] Only recently the Court re-
most deference to presidential responsi-
congressional d
stated the ancient proposition of law, al-
bilities. In C. & S. Air Lines V. Water-
with the Presi
beit in the context of a grand jury in-
man Steamship Corp., 333 U.S. 103, 111,
state secrets.
quiry rather than a trial,
-68 S.Ct. 431, 436, 92 L.Ed. 568 (1948),
between the P
eralized privile
the constitution
18. Because of the key role of the testimony
placed upon the operation of
in criminal trial
of witnesses in the judicial process, courts
principle only to the very limited
have historically been cautious about privi-
permitting a refusal to testify or excluding
20. Mr. Justice 8
leges. Justice Frankfurter, dissenting in
relevant evidence has a public good tran-
Elkins V, United States, 364 U.S. 206, 234,
analogous conte
scending the normally predominant principle
Court in Clark
80 S.Ct. 1437, 1454, 4 L.Ed.2d 1669 (1960),
of utilizing all rational means for ascertain-
said of this: "Limitations are properly
53 S.Ct. 465, 7
ing truth."
UNITED STATES V. NIXON
3109
Cite as 94 S.Ct. 3090 (1974)
dealing with presidential authority in-
tion, as we have noted earlier, is there
volving foreign policy considerations,
any explicit reference to a privilege of
the Court said:
confidentiality, yet to the extent this in-
"The President, both as Commander-
terest relates to the effective discharge
in-Chief and as the Nation's organ for
of a President's powers, it is constitu-
foreign affairs, has available intelli-
tionally based.
gence services whose reports are not
and ought not to be published to the
[45, 46] The right to the production
world. It would be intolerable that
of all evidence at a criminal trial simi-
courts, without the relevant informa-
larly has constitutional dimensions. The
tion, should review and perhaps nulli-
Sixth Amendment explicitly confers
fy actions of the Executive taken on
upon every defendant in a criminal trial
information properly held secret."
the right "to be confronted with the wit-
Id., at 111, 68 S.Ct., at 436.
nesses against him" and "to have com-
pulsory process for obtaining witnesses
In United States V. Reynolds, 345 U.S. 1,
in his favor. Moreover, the Fifth
73 S.Ct. 528, 97 L.Ed. 727 (1952), deal-
Amendment also guarantees that no per-
ing with a claimant's demand for evi-
son shall be deprived of liberty without
dence in a damage case against the Gov-
due process of law. It is the manifest
ernment the Court said:
duty of the courts to vindicate those
"It may be possible to satisfy the
guarantees and to accomplish that it is
court, from all the circumstances of
essential that all relevant and admissible
the case, that there is a reasonable
evidence be produced.
danger that compulsion of the evi-
In this case we must weigh the impor-
dence will expose military matters
tance of the general privilege of confi-
which, in the interest of national secu-
rity, should not be divulged. When
dentiality of presidential communica-
this is the case, the occasion for the
tions in performance of his responsibili-
ties against the inroads of such a privi-
privilege is appropriate, and the court
lege on the fair administration of crimi-
should not jeopardize the security
nal justice. The interest in preserving
which the privilege is meant to pro-
confidentiality is weighty indeed and en-
tect by insisting upon an examination
of the evidence, even by the judge
titled to great respect. However we
cannot conclude that advisers will be
alone, in chambers."
moved to temper. the candor of their re-
No case of the Court, however, has ex-
marks by the infrequent occasions of
tended this high degree of deference to
disclosure because of the possibility that
a President's generalized interest in con-
such conversations will be called for in
fidentiality. Nowhere in the Constitu-
the context of a criminal prosecution.
19. We are not here concerned with the bal-
phasized the importance of maintaining the
ance between the President's generalized in-
secrecy of the deliberations of a petit jury
terest in confidentiality and the need for rel-
in a criminal case. "Freedom of debate
evant evidence in civil litigation, nor with
might be stifled and independence of thought
that between the confidentiality interest and
checked if jurors were made to feel that
congressional demands for information, nor
their arguments and ballots were to be free-
with the President's interest in preserving
ly published in the world." Id., at 13, 53 S.
state secrets. We address only the conflict
Ct., at 469. Nonetheless, the Court also
between the President's assertion of a gen-
recognized that isolated inroads on confiden-
eralized privilege of confidentiality against
tiality designed to serve the paramount need
the constitutional need for relevant evidence
of the criminal law would not vitiate the in-
in criminal trials.
terests served by secrecy:
"A juror of integrity and reasonable firm-
20. Mr. Justice Cardozo made this point in an
ness will not fear to speak his mind if the
analogous context, speaking for a unanimous
confidences of debate bar barred to the ears
Court in Clark V. United States, 289 U.S. 1,
of mere impertinence of malice. He will not
53 S.Ct. 465, 77 L.Ed. 993 (1933), he em-
expect to be shielded against the disclosure
3110
94 SUPREME COURT REPORTER
On the other hand, the allowance of
Prosecutor to demonstrate that the pres-
camera inspe
the privilege to withhold evidence that is
idential material was "essential to the
a procedure
demonstrably relevant in a criminal trial
justice of the [pending criminal] case."
tection again
would cut deeply into the guarantee of
United States V. Burr, supra, 25 Fed.
tion of mate
due process of law and gravely impair
Cas., at 192. Here the District Court
at that stage
the basic function of the courts. A
treated the material as presumptively
dence and re
President's acknowledged need for confi-
privileged, proceeded to find that the
trial for whi
dentiality in the communications of his
Special Prosecutor had made a sufficient
true of an 0
office is general in nature, whereas the
showing to rebut the presumption and
vious that th
constitutional need for production of rel-
ordered an in camera examination of the
heavy respol
evant evidence in a criminal proceeding
subpoenaed material. On the basis of
presidential
is specific and central to the fair adjudi-
our examination of the record we are
ther not rele
cation of a particular criminal case in
unable to conclude that the District
accorded that
the administration of justice. Without
Court erred in ordering the inspection.
the President
access to specific facts a criminal prose-
Accordingly we affirm the order of the
Chief Justice
cution may be totally frustrated. The
District Court that subpoenaed materials
judge in the
President's broad interest in confiden-
be transmitted to that court. We now
traordinarily
tiality of communications will not be vi-
turn to the important question of the
tiated by disclosure of a limited number
District Court's responsibilities in con-
"[I]n no
of conversations preliminarily shown to
ducting the in camera examination of
court be r
have some bearing on the pending crimi-
presidential materials or communica-
the Presid
nal cases.
tions delivered under the compulsion of
individual.
the subpoena duces tecum.
25
[47,48] We conclude that when the
ground for asserting privilege as to sub-
Marshall's st
poenaed materials sought for use in a
E
mean in any
criminal trial is based only on the gener-
above the lav
alized interest in confidentiality, it can-
[52-55] Enforcement of the subpoe-
larly unique
not prevail over the fundamental de-
na duces tecum was stayed pending this
President's c
mands of due process of law in the fair
Court's resolution of the issues raised by
ties, related
administration of criminal justice. The
the petitions for certiorari. Those is-
under that A
generalized assertion of privilege must
sues now having been disposed of, the
dent's commu
yield to the demonstrated, specific need
matter of implementation will rest with
compass a vs
for evidence in a pending criminal trial.
the District Court. "[T]he guard, fur-
tive material
nished to [the President] to protect him
"ordinary in
D
from being harassed by vexatious and
necessary 21
unnecessary subpoenas, is to be looked
[49-51] We have earlier determined
for in the conduct of the [district] court
that the District Court did not err in
after the subpoenas have issued; not in
21. When the
authorizing the issuance of the subpoe-
any circumstance which is to precede
to the- Distri
na. If a President concludes that com-
their being issued." United States v.
may arise as
lies within t
pliance with a subpoena would be inju-
Burr, supra, at 34. Statements that
seek the aid
rious to the public interest he may prop-
meet the test of admissibility and rele-
the President
erly, as was done here, invoke a claim of
vance must be isolated; all other mate-
privilege on the return of the subpoena.
rial must be excised. At this stage the
Upon receiving a claim of privilege from
District Court is not limited to represen-
the Chief Executive, it became the fur-
tations of the Special Prosecutor as to
ther duty of the District Court to treat
the evidence sought by the subpoena;
the subpoenaed material as presumptive-
the material will be available to the Dis-
ly privileged and to require the Special
trict Court. It is elementary that in
of his conduct in the event that there is evi-
and give way to their repressive power is
dence reflecting upon his honor. The chance
too remote and shadowy to shape the course
that now and then there may be found some
of justice." Id., at 16, 53 S.Ct., at 470.
timid soul who will take counsel of his fears
UNITED STATES V. NIXON
3111
Cite as 94 S.Ct. 3090 (1974)
camera inspection of evidence is always
afford presidential confidentiality the
a procedure calling for scrupulous pro-
greatest protection consistent with the
tection against any release or publica-
fair administration of justice. The
tion of material not found by the court,
need for confidentiality even as to idle
at that stage, probably admissible in evi-
conversations with associates in which
dence and relevant to the issues of the
casual reference might be made con-
trial for which it is sought. That being
cerning political leaders within the
true of an ordinary situation, it is ob-
country or foreign statesmen is too
vious that the District Court has a very
obvious to call for further treatment.
heavy responsibility to see to it that
We have no doubt that the District
presidential conversations, which are ei-
Judge will at all times accord to
ther not relevant or not admissible, are.
presidential records that high degree of
accorded that high degree of respect due
deference suggested in United States V.
the President of the United States. Mr.
Burr, supra and will discharge his re-
Chief Justice Marshall sitting as a trial
sponsibility to see to it that until re-
judge in the Burr case, supra, was ex-
leased to the Special Prosecutor no in
traordinarily careful to point out that:
camera material is revealed to anyone.
This burden applies with even greater
"[I]n no case of this kind would a
force to excised material; once the deci-
court be required to proceed against
sion is made to excise, the material is
the President as against an ordinary
restored to its privileged status and
individual." United States V. Burr,
should be returned under seal to its law-
25 Fed.Cas. pp. 187, 192 (No. 14,694).
ful custodian.
Marshall's statement cannot be read to
mean in any sense that a President is
[56] Since this matter came before
above the law, but relates to the singu-
the Court during the pendency of a
larly unique role under Art. II of a
criminal prosecution, and on representa-
President's communications and activi-
tions that time is of the essence, the
ties, related to the performance of duties
mandate shall issue forthwith.
under that Article. Moreover, a Presi-
Affirmed.
dent's communications and activities en-
compass a vastly wider range of sensi-
tive material than would be true of any
Mr. Justice REHNQUIST took no
"ordinary individual." It is therefore
part in the consideration or decision of
necessary 21 in the public interest to
these cases.
21. When the subpoenaed material is delivered
eration of the validity of particular exci-
to the District Judge in camera questions
sions, whether the basis of excision is rele-
may arise as to the excising of parts and it
vancy or admissibility or under such cases as
lies within the discretion of that court to
Reynolds, supra, or Waterman Steamship,
seek the aid of the Special Prosecutor and
supra.
the President's counsel for in camera consid-
FORD
GERALD
LIBRARY
3112
94 SUPREME COURT REPORTER
to impose a multidistrict remedy for sin-
4. Schools a
William G: MILLIKEN, Governor of
gle-district de jure segregation in the
While
Michigan, et al., Petitioners,
absence of findings that the other in-
bridged wh
v.
cluded districts had failed to operate un-
tional viola
Ronald BRADLEY and Richard Bradley,
itary school systems or had committed
relief, notice
by their mother and next friend,
acts that effected segregation, in the ab-
may be cas
Verda Bradley, et al.,
sence of any claim or finding that school
mere admin
district boundary lines were established
trary to hi
with the purpose of fostering racial seg-
ALLEN PARK PUBLIC SCHOOLS et al.,
United Stat
regation, and without affording a mean-
Petitioners,
ingful opportunity for the included
5. Schools ai
V.
neighboring districts to present evidence
School
Ronald-BRADLEY and Richard Bradley,
or be heard on the propriety of a multi-
laws with re
by their mother and next friend,
district remedy or on the question of
sacrosanct,
Verda Bradley, et al.
constitutional violations by those dis-
Fourteenth
tricts.
have duty to
The GROSSE POINTE PUBLIC SCHOOL
dies. U.S.C.
SYSTEM, Petitioner,
Reversed and remanded.
6. Schools an
Mr. Justice' Stewart concurred and
Before
Ronald BRADLEY and Richard Bradley,
filed opinion.
autonomous
by their mother and next friend,
aside by cons
Verda Bradley, et al.
Mr. Justice Douglas dissented and
remedial pur
Nos. 73-434, 73-435 and 73-436.
filed opinion:
district reme
Argued Feb. 27, 1974.
Mr. Justice White dissented and
that there ha
Decided July 25, 1974.
filed opinion in which Mr. Justice Doug-
tion within
las, Mr. Justice Brennan and Mr. Justice
significant se
Marshall, joined.
district; spe
Parents, children and others insti-
that racially
Mr. Justice Marshall dissented and
or local sch
tuted a class action against various state
filed opinion in which Mr. Justice Doug-
school distri
and school district officials seeking re-
las, Mr. Justice Brennan and Mr. Justice
cause of inter
lief from alleged illegal racial segrega-
White, joined.
tion in the Detroit public school system.
7. Schools and
On remand after two prior appeals, 433
District
F.2d 897 and 438 F.2d 945, the United
1. Constitutional Law -220
multidistrict
States District Court for the Eastern
Doctrine of "separate but equal"
plan to reme
District of Michigan ruled that the sys-
has no place in field of public education,
segregation
tem was an illegally segregated one, 338
since separate educational facilities are
school system
F.Supp. 582, and, after the Court of Ap-
inherently unequal. U.S.C.A.Const.
of findings tl
peals dismissed appeals from orders re-
Amend. 14.
had failed to
quiring submission of desegregation
tems or had (
plans, 468-F.2d 902, directed preparation
2. Schools and School Districts @=13
ed segregation
of a metropolitan desegregation plan,
Finding of district court that De-
sence of any C
345 F.Supp. 914, and purchase of
troit public school system was illegally
district bound
school buses. The Court of Appeals
segregated on basis of race was not
with purpose (
affirmed the holding that a constitu-
plain error. Supreme Court Rules, rules
tion, and with
tionally adequate system of desgregat-
23, subd. 1(c), 40, subd. 1(d) (2), 28 U.
opportunity 1
ed schools could not be established
S.C.A.
districts to pr
within the Detroit school district's geo-
on propriety (
graphic limits and that a multidistrict
3. Schools and School Districts =13
on question o
metropolitan plan was necessary, -484 F.
Desegregation, in sense of disman-
by those distr
2d 215, and defendants appealed. The
tling dual school system, does notore-
340.27, 340.55,
Supreme Court, Mr. Chief Justice Burg-
quire any particular racial balance BER in
340.148, 340.1
er, held, inter alia, that it was improper
each school, grade or classroom.
192, 340.352,
94 S.Ct.-195
P.L. 93-501 LAWS OF 93rd CONG.-2nd SESS.
Oct. 29
Nov. 21
provision shall apply to such member or nonmember association,
of public e
institution, bank, or affiliate or to any other person."
to all cons
Sec. 304. The amendments made by this title shall apply to any
to reasonal
deposit made or obligation issued in any State after the date of
and provid
enactment of this title, but prior to the earlier of (1) July 1, 1977
duplication
or (2) the date (after such date of enactment) on which the State
duced char
enacts a provision of law which limits the amount of interest which
of the fee i
may be charged in connection with deposits or obligations referred to
can be cons
in the amendments made by this title.
"(B) On
Approved Oct. 29, 1974.
district in
of business
District of
FREEDOM OF INFORMATION ACT
holding age
For Legislative History of Act, see P. 6203
records im
the court s
PUBLIC LAW 93-502; 88 STAT. 1561
contents of
III. R. 12471]
records or
An Act to amend section 552 of title 5, United States Code, known as the
exemptions
Freedom of Information Act.
is on the ag
Be it enacted by the Senate and House of Representatives of the United
"(C) No
States of America in Congress assembled, That:
shall serve
(a) The fourth sentence of section 552(a) (2) of title 5, United
under this
States Code,¹⁸ is amended to read as follows: "Each agency shall also
fendant of
maintain and make available for public inspection and copying cur-
court other
rent indexes providing identifying information for the public as to
"(D) Ex
any matter issued, adopted, or promulgated after July 4, 1967, and
proceeding
required by this paràgraph to be made available or published. Each
tion, and a
agency shall promptly publish, quarterly or more frequently, and dis-
cases and :
tribute (by sale or otherwise) copies of each index or supplements
the earlies
thereto unless it determines by order published in the Federal Reg-
"(E) Th
ister that the publication would be unnecessary and impracticable,
attorney fe
in which case the agency shall nonetheless provide copies of such in-
case under
dex on request at a cost not to exceed the direct cost of duplication.".
prevailed.
(b) Section 552(a) (3) of title 5, United States Code,¹⁹ is
"(F) WI
amended to read as follows:
records im
(3) Except with respect to the records made available under par-
against the
agraphs (1) and (2) of this subsection, each agency, upon any re-
tion costs,
quest for records which (A) reasonably describes such records and
the circun
(B) is made in accordance with published rules stating the time,
whether a:
place, fees (if any), and procedures to be followed, shall make the
respect to
records promptly available to any person.".
promptly ii
(2) Section 552(a) of title 5, United States Code, is amended by
tion is war
redesignating paragraph (4), and all references thereto, as para-
responsible
graph (5) and by inserting immediately after paragraph (3) the fol-
tion and c
lowing new paragraph:
findings an
"(4) (A) In order to carry out the provisions of this section, each
agency cor
agency shall promulgate regulations, pursuant to notice and receipt
mendation:
administra
18. 5 U.S.C.A. 552(a)(2).
20. 5 U.S.C.A. $ 552(a).
Commissio
19. 5 U.S.C.A. 552(a)(3).
5758
DERALD FORD LIBRARY
12 U.S.C
Nov. 21
FREEDOM OF INFORMATION ACT P.L. 93-502
of public comment, specifying a uniform schedule of fees applicable
to all constituent units of such agency. Such fees shall be limited
to reasonable standard charges for document search and duplication
and provide for recovery of only the direct costs of such search and
duplication. Documents shall be furnished without charge or at a re-
duced charge where the agency determines that waiver or reduction
of the fee is in the public interest because furnishing the information
can be considered as primarily benefiting the general public.
"(B) On complaint, the district court of the United States in the
district in which the complainant resides, or has his principal place
of business. or in which the agency records are situated, or in the
District of Columbia, has jurisdiction to enjoin the agency from with-
holding agency records and to order the production of any agency
records improperly withheld from the complainant. In such a case
the court shall determine the matter de novo, and may examine the
contents of such agency records in camera to determine whether such
records or any part thereof shall be withheld under any of the
exemptions set forth in subsection (b) of this section, and the burden
is on the agency to sustain its action.
"(C) Notwithstanding any other provision of law, the defendant
shall serve an answer or otherwise plead to any complaint made
under this subsection within thirty days after service upon the de-
fendant of the pleading in which such complaint is made, unless the
court otherwise directs for good cause shown.
"(D) Except as to cases the court considers of grèater importance,
proceedings before the district court, as authorized by this subsec-
tion, and appeals therefrom, take precedence on the docket over all
cases and shall be assigned for hearing and trial or for argument at
the earliest practicable date and expedited in every way.
"(E) The court may assess against the United States reasonable
attorney fees and other litigation costs reasonably incurred in any
case under this section in which the complainant has substantially
prevailed.
"(F) Whenever the court orders the production of any agency
records improperly withheld from the complainant and assesses
against the United States reasonable attorney fees and other litiga-
tion costs, and the court additionally issues a written finding that
the circumstances surrounding the withholding raise questions
whether agency personnel acting arbitrarily or capriciously with
respect to the withholding, the Civil Service Commission shall
promptly initiate a próceeding to determine whether disciplinary ac-
tion is warranted against the officer or employee who was primarily
responsible for the withholding. The Commission, after investiga-
tion and consideration of the evidence submitted, shall submit its
findings and recommendations to the administrative authority of the
agency concerned and shall send copies of the findings and recome
RD
mendations to the officer or employee or his representative The
administrative authority shall take the corrective action DERA that the
Commission recommends.
LIBRARY
U.S.Cong.News 74-16
5759
P.L. 93-502 LAWS OF 93rd CONG.-2nd SESS.
Nov. 21
Nov. 21
"(G) In the event of noncompliance with the order of the court,
of the reco
the district court may punish for contempt the responsible employee,
a request
and in the case of a uniformed service, the responsible member.".
to such pe
(c) Section 552(a) of title 5, United States Code, is amended by
any reque
adding at the end thereof the following new paragraph:
names and
"(6) (A) Each agency, upon any request for records made under
ial of such
paragraph (1), (2), or (3) of this subsection, shall-
Sec. 2.
"(i) determine within ten days (excepting Saturdays, Sun-
is amende
days, and legal public holidays) after the receipt of any such re-
"(1)
quest whether to comply with such request and shall immediate-
an Ex
ly notify the person making such request of such determination
defens
and the reasons therefor, and of the right of such person to ap-
pursua
peal to the head of the agency any adverse determination; and
(b) Sect
"(ii) make a determination with respect to any appeal within
to read as
twenty days (excepting Saturdays, Sundays, and legal public
"(7)
holidays) after the receipt of such appeal. If on appeal the
poses,
denial of the request for records is in whole or in part upheld,
would
the agency shall notify the person making such request of the
prive 1
provisions for judicial review of that determination under para-
tion, (
graph (4) of this subsection.
acy, (
(B) In unusual circumstances as specified in this subparagraph,
the ca:
the time limits prescribed in either clause (i) or clause (ii) of sub-
thority
paragraph (A) may be extended by written notice to the person
conduc
making such request setting forth the reasons for such extension and
confid
the date on which a determination is expected to be dispatched. No
source
such notice shall specify a date that would result in an extension for
or (F
more than ten working days. As used in this subparagraph, 'unusual
ment 1
circumstances' means, but only to the extent reasonably necessary
(c) Sect
to the proper processing of the particular request-
adding at t
"(i) the need to search for and collect the requested records
of a record
from field facilities or other establishments that are separate
after delet
from the office processing the request;
tion.".
"(ii) the need to search for, collect, and appropriately exam-
Sec. 3.
ine a voluminous amount of separate and distinct records which
by adding
are demanded in a single request; or
"(d) On
"(iii) the need for consultation, which shall be conducted
shall subm
with all practicable speed, with another agency having a sub-
Speaker of
stantial interest in the determination of the request or among
for referra
two or more components of the agency having substantial sub-
report shal
ject-matter interest therein.
"(1)
"(C) Any person making a request to any agency for records un-
to com
der paragraph (1), (2), or (3) of this subsection shall be deemed to
subsec
have exhausted his administrative remedies with respect to such
"(2)
request if the agency fails to comply with the applicable time limit
(a) (6)
provisions of this paragraph. If the Government can show ex-
upon e
ceptional circumstances exist and that the agency is exercising due
"(3)
diligence in responding to the request, the court may retain juris-
sible f
diction and allow the agency additional time to complete its
the nu
21. 5 U.S.C.A. $ 552(a).
5760
GERALD
22. 5 U.S.C.A
23. 5 U.S.C.A
Nov. 21
FREEDOM OF INFORMATION ACT P.L. 93-502
of the records. Upon any determination by an agency to comply with
a request for records, the records shall be made promptly available
to such person making such request. Any notification of denial of
any request for records under this subsection shall set forth the
names and titles or positions of each person responsible for the den-
ial of such request.".
Sec. 2. (a) Section 552(b)(1) of title 5, United States Code,22
is amended to read as follows:
"(1) (A) specifically authorized under criteria established by
an Executive order to be kept secrét in the interest of national
defense or foreign policy and (B) are in fact properly classified
pursuant to such Executive order;".
(b) Section 552(b) (7) of title 5, United States Code, is amended
to read as follows:
"(7) investigatory records compiled for law enforcement pur-
poses, but only to the extent that the production of such records
would (A) interfere with enforcement proceedings, (B) de-
prive a person of a right to a fair trial or an impartial adjudica-
tion, (C) constitute an unwarranted invasion of personal priv-
acy, (D) disclose the identity of a confidential source and, in
the case of a record compiled. by a criminal law enforcement au-
thority in the course of a criminal investigation, or by an agency
conducting a lawful national security intelligence investigation,
confidential information furnished only by the confidential
source, (E) disclose investigative techniques and procedures,'
or (F) endanger the life or physical safety of law enforce-
ment personnel;"
(c) Section 552(b) of title 5, United States Code,24 is amended by
adding at the end the following: "Any reasonably segregable portion
of a record shall be provided to any person requesting such record
after deletion of the portions which are exempt under this subsec-
tion.".
Sec. 3. Section 552 of title 5, United States Code,25 is amended
by adding at the end thereof the following new subsections:
"(d) On or before March 1 of each calendar year, each agency
shall submit a report covering the preceding calendar year to the
Speaker of the House of Representatives and President of the Senate
for referral to the appropriate committees of the Congress. The
report shall include-
"(1) the number of determinations made by such agency not
to comply with requests for records made to such agency under
subsection (a) and the reasons for each such determination;
"(2) the number of appeals made by persons under subsection
(a) (6), the result of such appeals, and the reason for the action
upon each appeal that results in a denial of information;
"(3) the names and titles or positions of each person respon-
sible for the denial of records requested under this section, and
the number of instances of participation for each;
PP
U.S.C.A.
0
552(b)(1).
U.S.C.A.
552(b)(7).
24. 5 U.S.C.A. 000000 552(b).
25. 5 U.S.C.A.
552.
5761
FORD & 078839 LIBRARY
P.L. 93-502 LAWS OF 93rd CONG.-2nd SESS.
Nov. 21
"(4) the results of each proceeding conducted pursuant to
subsection (a) (4) (F), including a report of the disciplinary
action taken against the officer or employee who was primarily
responsible for improperly withholding records or an explana-
tion of why disciplinary action was not taken;
"(5) a copy of every rule made by such agency regarding this
section;
"(6) a copy of the fee schedule and the total amount of fees
collected by the agency for making records available under this
section; and
"(7) such other information as indicates efforts to administer
fully this section.
The Attorney General shall submit an annual report on or before
March 1 of each calendar year which shall include for the prior
calendar year a listing of the number of cases arising under this sec-
tion, the exemption, involved in each case, the disposition of such
case, and the cost, fees, and penalties assessed under subsections
(a) (4) (E), (F), and (G). Such report shall also include a descrip-
Nume
tion of the efforts undertaken by the Department of Justice to en-
courage agency compliance with this section.
Por
"(e) For purposes of this section, the term 'agency' as defined in
ports
section 551(1) of this title includes any executive department, mili-
necess
tary department, Government corporation, Government controlled
herein
corporation, or other establishment in the executive branch of the
Government (including the Executive Office of the President), or
any independent regulatory agency.".
Sec. 4. The amendments made by this Act shall take effect on the
ninetieth day beginning after the date of enactment of this Act.
Approved Nov. 21, 1974.
BERALD FORD LIBRARY
5762
DISSENTING VIEWS OF HON. BELLA S. ABZUG
I concur in the dissent of my colleagues, Representative Brooks and
Representative Moss. Like them, I cannot support H.R. 12462. This
bill, for the very first time, gives statutory recognition to a concept
which has no constitutional basis-the discretionary authority of the
executive to withhold information from the legislature. In so doing,
it not only legitimizes this concept of "executive privilege" but severely
and unnecessarily limits the well-established power of Cong USA to cb.
tain necessary information from the executive branch. From the earli-
est days of the Republic, the congressional requirement of information
from the executive, in furtherance of its legislative function, has been
a well-recognized principle. The Supreme Court, in McGrain v. Da yn-
erty, U.S. 135, 174 (1927), reaffirmed this principle when it stated
that "the power of inquiry-with process to enforce it-is an essential
and appropriate auxiliary to the legislative function." (Italic sup-
plied.)
Along with the well-established authority of Congress to require
information in fulfillment of its legislative or investigative duties,
there has been a concomitant obligation on the part of the executive
to make such information available when it serves a legitimate legicla
tive or investigative purpose. Nowhere in the Constitution is there any
mention of "executive privilege" nor any hint of a discretionary au-
thority to withhold such information from the legislative branch. In
fact, the concept of "executive privilege" vis-a-vis the Congress has no
foundation-in judicial precedent. in statute, in the constitutional doc-
trine of separation of powers, or in any constitutional provision.
Of course, I realize that, despite its lack of legitimacy, this so-called
privilege has been invoked to thwart the efforts of Congress and its
committees to obtain much-needed information. Although, over the
past 200 years, most congressional requests for specific information
from the executive have met with compliance, there has been a growing
tendency, especially during the past 20 years, for the executive branch
to resist the disclosure of information. This is a serious problem and
one which severely hampers the Congress in the performance of its
duties. But is H.R. 12462 the solution to the problem? I think not.
Congress already has the power to compel the production of infor-
mation from the executive branch. Through its subpena power and
its power to initiate contempt proceedings, it already has the recourse
to the courts which this bill pretends to confer. As the court of appeals
stated in Nixon v. Sirica and Cox, 42 L.W. 2211, (CADC, 1973)
Throughout our history, there have frequently been con-
fliets between independent organs of the Federal Govern-
ment * When such conflicts arise in justiciable cases,
our constitutional system provides a means for resolving RD
them-one Supreme Court.
(37)
GERALD
LIBRARY
38
Quite apart from this judicial remedy, there exists a political process
that has worked more than reasonably well over the course of our
history. The system of checks and balances designed by the framers
of our Constitution has been effective in restraining the excessive
exercise of power by any of the three separate branches.
H.R. 12462 would add nothing to the power of Congress to compel
the disclosure of executive information. It adds no new remedies nor
does it simplify existing procedures. Quite the contrary. It would set
up cumbersome and costly procedures for Congress to obtain judicial
compliance. It would permit the executive branch to delay and inter-
fere further with the legislative process. And, most important, by
setting forth a definition of "compelling national interest" for the
courts to interpret on a case-by-case basis, in order to determine
whether particular information should be disclosed, H.R. 12462 would
distort the role of the courts and force them into the position of re-
writing the constitution rather than interpreting it.
But what is most abhorrent in H.R. 12462 is its ceding to the Presi-
dent the discretion to withhold vital information, not on the basis of
any constitutional power, but as a congressional grant of authority.
At this moment in history, we are engaged in a strenuous effort to re-
store the constitutional balance and to reverse the recent trend toward
excessive executive power. At the very least, the enactment of this bill
at this time would compound past executive usurpations and congres-
sional ceding of legislative authority and muddy the waters.
BELLA S. ABZUG.
FORD
GERALD
LIBRARY
DISSENTING VIEWS OF HON. CARDISS COLLINS
I believe that this bill does little more than recognize the right of
discretionary executive privilege, and I cannot support it for the
following reasons.
The Constitution was written by men who were well acquainted with
a system of government that relied heavily upon its legislative branch.
The British Parliament was charged with overseeing all aspects of
the empire, both at home and abroad. In 1742, William Pitt sum-
marized this by stating that Parliament is "the Grand Inquest of the
Nation, and as such it is our duty to inquire into every step of public
management, either abroad or at home, in order to see that nothing
has been done amiss." 1
Complete oversight was the role of Parliament; and, according
to the U.S. Supreme Court, complete oversight is the role of Congress.
In McGrain. v. Daugherty, 273 U.S. 135 (1927), the Court said that
investigatory power "was regarded as an attribute of the power to
legislate in the British Parliament." 2 It further declared:
We are of the opinion that the power of inquiry-with the
process to enforce it-is an essential and appropriate auxil-
ary to the legislative function. It was so regarded and ein-
ployed in American legislatures before the Constitution was
framed and ratified. Both Houses of Congress took this view
of it early in their history
***
and both Houses have em-
ployed the power accordingly up to the present time.⁸
The Court expanded on the McGrain decision in 1957, in Watkins
V. United States:
The power of Congress to conduct investigations is inherent
in the legislative process. That power is broad. It encompasses
inquiries concerning the administration of existing laws as
well as proposed or possibly needed statutes. It includes sur-
veys of defects in our social, economic, or political system for
the purpose of Congress to remedy them. It comprehends
probes into departments of the Federal Government to expose
corruption, inefficiency, or waste. But, broad as is this power
of inquiry, it is not unlimited. There is no general authority
to expose the private affairs of individuals without justifica-
tion in terms of the functions of Congress
* *
No inquiry
is an end in its If; it must be related to, and in furtherance
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of, a legitimate task of the Congress. Investigations conducted
solely for the personal aggrandizement of the investigators
or to "punish" those investigated are indefensible.
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1 Raoul Berger, Executive Privilege V. Congressional Inquiry, 12 UCLA L. R. 1044, 1058
(1965).
2 273 U.S. 135, 161.
273 U.S. 135, 174.
354 U.S. 178, 187.
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The Supreme Court has laid down the bounds within which Congress
may investigate. There is no reason for Congress, in its quest for in-
formation to be used in furtherance of its legitimate constitutional
role, to narrow, in any way, its investigatory scope. Yet, that is what
this legislation attempts to do.
During the last two decades, rights of Congress and of the Ameri-
can people have diminished under a new constitutional doctrine called
executive privilege. We were advised in the 1950's by former Attorney
General Rogers and more recently by former Attorney General Klein-
dienst. that the President is privileged to withhold from Congress
whatever information he so chooses.
This is contrary to the Supreme Court's holdings in Watkins and
McGrain. There has never been any historical and/or legal justifica-
tion for discretionary executive privilege. In fact, Attorney General
Cabel Cushing, in 1854, wrote to President Pierce and stated that he
and his predecessors "had recognized the right of either House of
Congress to call on [Heads of Departments] for information in any
matters within the scope of his office, and his duty to con muricate
the same"."
In my view H.R. 12462 tacitly recognizes discretionary executive
privilege. It allows the courts to determine whether the President has
a "compelling national interest" in refusing to give Congress pertinent
facts. It allows aides from any level of Government the identical privi-
lege. Any legitimized withholding of information from Congress will
work to the detriment of its investigatory role. I believe that with the
bill there will be an acquiescence to absolute privilege: a privilege
which is without justification.
CARDISS COLLINS.
5 VI Opinions of Attorneys General 326, 335 (1854).
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ADDITIONAL VIEWS OF HON. JIM WRIGHT
I had hoped to be able to support workable legislation to provide
an effective way for Congress to obtain all information needed from
the executive branch for us to fulfill our constitutional responsibilities.
As a member of the Foreign Operations and Government Informa-
tion Subcommittee that has struggled to draft such legislation, I
agreed to join in sponsoring the bipartisan measure, H.R. 12462, in
order to break the philosophical impasse which developed during
many days of markup sessions on several different versions of this
legislation.
The thrust of the debate in the full committee on this issue, however.
has persuaded me that H.R. 12462, for all its careful draftsmanship,
still may not be that workable legislation which we are seeking to curb
the excessive use of Presidential authority to withhold vital informa-
tion from Congress. During debate in the full committee, I became
awkwardly aware of at least the ironic possibility that such a bill
conceivably could have just the opposite effect from that which the
proponents and sponsors of H.R. 12462, myself included, have in-
tended. It is just conceivable that it might inadvertently offer tempt-
ing loopholes for Federal bureaucrats to avoid direct testimony before
congressional committees and be subject to an unintended interpre-
tation of giving some heretofore nonexistent legal standing to some
presumed constitutional privilege of the President to withhold in-
formation from Congress.
For these reasons, I ultimately voted against reporting this bill
to the House floor at this time.
JIM WRIGHT.
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